[House Hearing, 112 Congress]
[From the U.S. Government Publishing Office]
H.R. 1158, TO AUTHORIZE CONVEYANCE OF MINERAL RIGHTS BY THE SECRETARY
OF INTERIOR IN THE STATE OF MONTANA; & H.R. 1560, TO AMEND THE YSLETA
DEL SUR PUEBLO AND ALABAMA AND COUSHATTA INDIAN TRIBES OF TEXAS
RESTORATION ACT
=======================================================================
LEGISLATIVE HEARING
before the
SUBCOMMITTEE ON INDIAN AND
ALASKA NATIVE AFFAIRS
of the
COMMITTEE ON NATURAL RESOURCES
U.S. HOUSE OF REPRESENTATIVES
ONE HUNDRED TWELFTH CONGRESS
FIRST SESSION
__________
Wednesday, June 22, 2011
__________
Serial No. 112-43
__________
Printed for the use of the Committee on Natural Resources
Available via the World Wide Web: http://www.fdsys.gov
or
Committee address: http://naturalresources.house.gov
----------
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66-729 PDF WASHINGTON : 2011
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Washington, DC 20402-0001
COMMITTEE ON NATURAL RESOURCES
DOC HASTINGS, WA, Chairman
EDWARD J. MARKEY, MA, Ranking Democrat Member
Don Young, AK Dale E. Kildee, MI
John J. Duncan, Jr., TN Peter A. DeFazio, OR
Louie Gohmert, TX Eni F.H. Faleomavaega, AS
Rob Bishop, UT Frank Pallone, Jr., NJ
Doug Lamborn, CO Grace F. Napolitano, CA
Robert J. Wittman, VA Rush D. Holt, NJ
Paul C. Broun, GA Raul M. Grijalva, AZ
John Fleming, LA Madeleine Z. Bordallo, GU
Mike Coffman, CO Jim Costa, CA
Tom McClintock, CA Dan Boren, OK
Glenn Thompson, PA Gregorio Kilili Camacho Sablan,
Jeff Denham, CA CNMI
Dan Benishek, MI Martin Heinrich, NM
David Rivera, FL Ben Ray Lujan, NM
Jeff Duncan, SC John P. Sarbanes, MD
Scott R. Tipton, CO Betty Sutton, OH
Paul A. Gosar, AZ Niki Tsongas, MA
Raul R. Labrador, ID Pedro R. Pierluisi, PR
Kristi L. Noem, SD John Garamendi, CA
Steve Southerland II, FL Colleen W. Hanabusa, HI
Bill Flores, TX Vacancy
Andy Harris, MD
Jeffrey M. Landry, LA
Charles J. ``Chuck'' Fleischmann,
TN
Jon Runyan, NJ
Bill Johnson, OH
Todd Young, Chief of Staff
Lisa Pittman, Chief Counsel
Jeffrey Duncan, Democrat Staff Director
David Watkins, Democrat Chief Counsel
------
SUBCOMMITTEE ON INDIAN AND ALASKA NATIVE AFFAIRS
DON YOUNG, AK, Chairman
DAN BOREN, OK, Ranking Democrat Member
Tom McClintock, CA Dale E. Kildee, MI
Jeff Denham, CA Eni F.H. Faleomavaega, AS
Dan Benishek, MI Ben Ray Lujan, NM
Paul A. Gosar, AZ Colleen W. Hanabusa, HI
Raul R. Labrador, ID Edward J. Markey, MA, ex officio
Kristi L. Noem, SD
Doc Hastings, WA, ex officio
------
CONTENTS
----------
Page
Hearing held on Wednesday, June 22, 2011......................... 1
Statement of Members:
Lujan, Hon. Ben Ray, a Representative in Congress from the
State of New Mexico........................................ 2
Prepared statement of.................................... 4
Young, Hon. Don, the Representative in Congress for the State
of Alaska, Prepared statement of........................... 1
Statement of Witnesses:
Fox, Hon. Joe, Jr., Vice President, Northern Cheyenne Tribe,
Lame Deer, Montana......................................... 19
Prepared statement of.................................... 20
Gillette, Jodi, Deputy Assistant Secretary for Indian
Affairs, U.S. Department of the Interior, Washington, D.C.. 11
Prepared statement on H.R. 1158.......................... 13
Prepared statement on H.R. 1560.......................... 14
Hisa, Hon. Carlos, Lieutenant Governor, Ysleta del Sur
Pueblo, El Paso, Texas..................................... 25
Prepared statement of.................................... 26
Kerr, Charles H., President & CEO, Great Northern Properties
Limited Partnership, Houston, Texas........................ 28
Prepared statement of.................................... 29
Rehberg, Hon. Dennis, a Representative in Congress for the
State of Montana--At Large................................. 7
Prepared statement of.................................... 9
Reyes, Hon. Silvestre, a Representative in Congress from the
State of Texas............................................. 5
Prepared statement of.................................... 6
Additional materials supplied:
List of documents retained in the Committee's official files. 36
LEGISLATIVE HEARING ON H.R. 1158, TO AUTHORIZE THE CONVEYANCE OF
MINERAL RIGHTS BY THE SECRETARY OF THE INTERIOR IN THE STATE OF
MONTANA, AND FOR OTHER PURPOSES; AND H.R. 1560, TO AMEND THE YSLETA DEL
SUR PUEBLO AND ALABAMA AND COUSHATTA INDIAN TRIBES OF TEXAS RESTORATION
ACT TO ALLOW THE YSLETA DEL SUR PUEBLO TRIBE TO DETERMINE BLOOD QUANTUM
REQUIREMENT FOR MEMBERSHIP IN THAT TRIBE.
----------
Wednesday, June 22, 2011
U.S. House of Representatives
Subcommittee on Indian and Alaska Native Affairs
Committee on Natural Resources
Washington, D.C.
----------
The Subcommittee met, pursuant to call, at 11:10 a.m. in
Room 1334, Longworth House Office Building, Hon. Doc Hastings
[Acting Chairman of the Subcommittee] presiding.
Present: Representatives McClintock, Gosar, Hastings [ex
officio], Lujan, and Hanabusa.
Mr. Hastings [presiding]. The Subcommittee will come to
order. The Subcommittee on Indian and Alaska Native Affairs is
meeting today to hear testimony on two bills, H.R. 1158, the
Montana Mineral Conveyance Act, and H.R. 1560, the bill to
authorize the Ysleta del Sur Pueblo to determine its tribal
enrollment rules, on the same footing as other recognized
tribes.
Under Rule 4[f], opening statements are limited to the
Chairman and Ranking Member of the Committee so that we can
hear from our witnesses. I ask unanimous consent, however, that
any other Member who wants to submit a statement for the record
be allowed to do so. Without objection, so ordered.
I note that I am pinch-hitting today for Chairman Young,
who is preoccupied. So without objection, his statement will
appear in the record.
[The prepared statement of Mr. Young follows:]
Statement of The Honorable Don Young, Chairman,
Subcommittee on Indian and Alaska Native Affairs, on H.R. 1158
Today, we will hear testimony from government and stakeholders
regarding two bills: H.R. 1158, a bill to authorize the conveyance of
mineral rights by the Secretary of the Interior in the State of
Montana, and H.R. 1560, a bill to amend the Ysleta del Sur Pueblo and
the Alabama and Coushatta Indian Tribes of Texas Restoration Act to
allow the Ysleta del Sur Pueblo Tribe to determine blood quantum
requirement for membership in that tribe.
These bills have been referred to this subcommittee and are
believed to be non-controversial measures. The first bill, H.R. 1158,
``The Montana Mineral Conveyance Act,'' as introduced by Representative
Denny Rehberg, would provide for a land exchange in the State of
Montana. This land exchange would mutually benefit the Northern
Cheyenne Tribe, the federal government, and a privately owned coal
company. To this day, the Tribe does not own all the subsurface rights
on their reservation. H.R. 1158, would bring ownership of those un-
owned subsurface tracts to the Tribe, after an exchange between the
federal government and a privately owned company.
H.R. 1560, as introduced by Representative Silvestre Reyes, would
allow the Ysleta del Sur Pueblo to set their own blood quantum
requirement that a member must possess before enrolling in their Tribe.
Under current law, enrolled members must possess at least 1/8 degree or
more Yseleta del Sur Indian blood. Similar bills have been introduced
in every Congress since the 105th Congress.
I look forward to our witnesses' testimonies and hope to move
quickly these bills to a full Committee vote.
______
Mr. Hastings. Now I will recognize the gentleman from New
Mexico for his opening statement. The gentleman is recognized.
STATEMENT OF THE HON. BEN RAY LUJAN, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF NEW MEXICO
Mr. Lujan. Thank you very much, Mr. Chairman. I would like
to begin by thanking Chairman Doc Hastings for being with us
today. And as well, I am here on behalf of Ranking Member Dan
Boren.
I would like to welcome our colleagues from Montana and
Texas to the table today, Chairman Rehberg and Congressman
Reyes, whose bills we have the pleasure of learning more about
today. Both bills H.R. 1158 and H.R. 1560 provide solutions to
longstanding issues facing tribes from both the Congressmen's
districts, and I look forward to hearing their testimonies.
I would also like to give a special welcome to Lt. Governor
Hisa of Ysleta del Sur Pueblo, Pueblo Indian Tribe, that has
close ties to New Mexico; and that I had the pleasure of
visiting with in the past and at various meetings of the All-
Indian Pueblo Council meetings.
I was fortunate to be at the IPC traditional meeting held
at Tewa Pueblo for the Ysleta del Sur Pueblo inauguration
ceremony back in 2010.
I appreciate your appearance here today, and I thank you
for making the long journey to Washington, D.C., to represent
your people. Welcome.
The first piece of legislation we will hear witnesses on
today is Mr. Rehberg's bill, H.R. 1158, which addresses two
issues facing the Northern Cheyenne Tribe: the Federal
Government's failure to obtain, for over 100 years, the
subsurface mineral rights on eight sections of Northern
Cheyenne Reservation land currently owned by Great Northern
Properties, GNP, which is the largest owner of coal reserves in
the U.S. other than the Federal Government; and the Federal
Government's transfer of 533 million tons of Federal mineral
rights on the Tribe's ancestral homeland to the State of
Montana without adequate tribal consultation or consideration
of potential impacts development of those tracts would have on
the Tribe's reservation.
To resolve these issues, the bill would authorize the
Secretary of the Interior to transfer subsurface mineral rights
to eight sections of Federal land managed by the Bureau of Land
Management to GNP, in exchange for GNP's transfer to the Tribe
the rights to the subsurface of eight sections of land within
the reservation.
For its part, the Tribe will waive and release its breach
of trust claims against the United States for the Federal
Government's failure to resolve the Tribe's split estate, and
for the Federal Government's conveyance of Federal coal tracts
located on the Tribe's ancestral homelands to the State of
Montana.
I look forward to hearing more about the details of this
bill, particularly with respect to how the mineral estates on
the tracts to be exchanged are valued, and how the bill's
objective to settle longstanding claims against the United
States by a tribal beneficiary factors into that analysis.
The second piece of legislation we will hear witnesses on
today is H.R. 1560, a bill to amend the Ysleta del Sur Pueblo
and Alabama and Coushatta Indian Tribes of Texas Restoration
Act to allow the Ysleta del Sur Pueblo Tribe to determine blood
quantum requirements for membership in their own tribe.
This bill is very important to me because of the
implications that it has upon the ability of this Tribe to
determine the outcome of its own future. The Pueblo of Ysleta
del Sur has endured many struggles to reach the point today.
Effectively, Congressman Reyes's bill would allow Ysleta
del Sur Pueblo to determine its own requirements for
membership, an inherent right of all but two of the 565
Federally recognized Indian Tribes in the United States. This
bill is about allowing Ysleta del Sur to create a foundation
for its own future based upon the needs of its tribal
citizenry, on the principles of tribal self-governance and
determination.
Tribal membership is rooted in the very notion of
sovereignty, and it is critical to the preservation and
protection of the Pueblo people and their culture. No other
entity should be in charge of determining who is qualified to
be a tribal member, other than the Tribe itself. There is no
doubt that support for this legislation means understanding and
respecting tribal sovereignty, because it reflects the ability
of a sovereign tribe to carry on their own culture and
traditions.
Ysleta del Sur has the proud support of the Pueblo Tribes
by virtue of membership in the All-Indian Pueblo Council, an
organization made up of New Mexico's 19 Pueblos. After being
absent for over 330 years, Ysleta del Sur Pueblo recently
rejoined the Pueblo Council to take its rightful place among
its fellow Pueblos, charging itself with promoting social
justice and the commonwealth of all Indian Pueblo people.
Mr. Chairman, I would ask unanimous consent to submit into
the record a letter of support from the All-Indian Pueblo
Council for H.R. 1560.
Mr. Hastings. Without objection, so ordered.
[NOTE: The letter submitted for the record by Mr. Lujan has
been retained in the Committee's official files.]
Mr. Lujan. Thank you again, Mr. Chairman, for the
opportunity to hear this important bill, and I look forward to
the opportunity to ask questions. Thank you very much.
[Prepared statement of Mr. Lujan follows:]
Statement of The Honorable Ben Ray Lujan, a Representative in Congress
from the State of New Mexico, on H.R. 1158 (Rehberg) and H.R. 1560
(Reyes)
Thank you, Mr. Chairman. To begin, I'd like to welcome my
Colleagues from Montana and Texas at the witness table today,
Congressman Rehberg and Congressman Reyes, whose bills we have the
pleasure of learning more about today. Both bills, H.R. 1158 and H.R.
1560, provide solutions to longstanding issues facing tribes from both
the congressmen's districts. I look forward to hearing their
testimonies.
I'd also like to give a special welcome to Lieutenant Governor Hisa
of the Ysleta Del Sur Pueblo--a Pueblo Indian Tribe that has close ties
to New Mexico and one that I have had the pleasure of visiting with in
the past at various All Indian Pueblo Council meetings.--I was
fortunate to be at the AIPC traditional meeting held at KEWA Pueblo for
the Ysleta Del Pueblo Sur inauguration ceremony back in 2010. I
appreciate your appearance here today and thank you for making the long
journey to Washington to represent your people. Welcome!
The first piece of legislation we will hear witnesses on today is
Mr. Rehberg's bill, H.R. 1158, which addresses two issues facing the
Northern Cheyenne Tribe: (1) the federal government's failure to
obtain, for over 100 years, the subsurface mineral rights on 8 sections
of Northern Cheyenne Reservation land currently owned by Great Northern
Properties (``GNP''), which is the largest owner of coal reserves in
the U.S. other than the federal government; and (2) the federal
government's transfer 533 million tons of federal mineral rights on the
Tribe's ancestral homelands to the State of Montana without adequate
tribal consultation or consideration of potential impacts development
of those tracts would have on the Tribe's Reservation.
To resolve these issues, the bill would authorize the Secretary of
the Interior to transfer subsurface mineral rights to 8 sections of
federal land managed by the Bureau of Land Management to ``GNP'' in
exchange for GNP's transfer to the Tribe the rights to the subsurface
of 8 sections of land within the Reservation.
For its part, the Tribe will waive and release its breach of trust
claims against the United States for the federal government's failure
to resolve the Tribe's split estate and for the federal government's
conveyance of federal coal tracts located on the Tribe's ancestral
homelands to the State of Montana.
I look forward to learning more about the details of this bill,
particularly with respect to how the mineral estates on the tracts to
be exchanged are valued, and how the bill's objective--to settle
longstanding claims against the United States by a tribal beneficiary--
factors into that analysis.
The second piece of legislation we will hear witness on is H.R.
1560--a bill to amend the Ysleta del Sur Pueblo and Alabama and
Coushatta Indian Tribes of Texas Restoration Act to allow Ysleta del
Sur Pueblo Tribe to determine blood quantum requirements for membership
in their own tribe.
This bill is very important to me because of the implications it
has upon the ability of this tribe to determine the outcome of its own
future. The Pueblo of Ysleta Del Sur has endured many struggles to
reach this point today. Effectively Congressman Reyes' bill would allow
Ysleta del Sur Pueblo to determine blood quantum requirement for
membership in their own tribe, an inherent right of all but 2 of the
565 federally recognized Indian tribes in the United States. This bill
is about allowing Ysleta Del Sur to create a foundation for its own
future based upon the needs of its tribal citizenry and the principles
of tribal self-governance and self-determination.
Tribal membership is rooted in the very notion of sovereignty and
is critical to the preservation and protection of Pueblo people and
their culture. No other entity should be in charge of determining who
is qualified to be a tribal member other than the tribe itself. There
is no doubt that support for this legislation means understanding and
respecting tribal sovereignty because it reflects the ability of a
sovereign tribe to carry on their own culture and traditions.
Ysleta del Sur Pueblo has the broad support of Pueblo tribes by
virtue of its membership in the All Indian Pueblo Council, an
organization made up of New Mexico's 19 Pueblos. After being absent for
over 330 years, Ysleta del Sur Pueblo recently rejoined the Pueblo
Council to take its rightful place among its fellow Pueblos, charging
itself with promoting social justice and the common welfare of all
Pueblo people.
I ask my colleagues to support Ysleta Del Pueblo Sur in its efforts
to determine its own membership by swiftly approving H.R. 1560.
Thank you again Mr. Chairman for the opportunity to hear this very
important bill and I look forward for the opportunity to ask questions.
Thank you.
______
Mr. Hastings. I thank the gentleman for his statement. On
our first panel of witnesses are our two colleagues, one from
Montana and one from Texas. I understand that Mr. Reyes has a
very tight schedule, and Mr. Rehberg likes to have--so he has
allowed Mr. Reyes to go first.
So with that, the gentleman is recognized for five minutes.
I am sure you know the light schedule. The green light goes on,
you have five minutes; yellow light, 30 seconds. Your full
statement will appear in the record.
So Mr. Reyes, you are recognized for five minutes.
STATEMENT OF THE HON. SILVESTRE REYES, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF TEXAS
Mr. Reyes. Thank you, Mr. Chairman. I want to thank my
colleague for allowing me to go first. I very much appreciate
it.
Good morning, and I want to thank you, Mr. Chairman, and
the Ranking Member, for the support that you have given me, and
also the members of this Committee for their assistance, as
well.
My legislation, H.R. 1560, is set to grant the people of
the Ysleta del Sur Pueblo the right to determine their own
membership. This historic Federally recognized Native American
Tribe is the oldest community in Texas, and one of only three
Native American Tribes in the State.
The tribal community, which is known as Tewa, was
established in 1681, after the Pueblo revolt against the
Spanish colonization of the Americas, nearly a century before
the Declaration of Independence, and more than 160 years before
the annexation of Texas to the United States.
For over three centuries, the Tewa have maintained a
vibrant presence in my Congressional District in El Paso,
Texas, and are a central part of our community's culture and
heritage. Today there are nearly 1700 enrolled members in the
Tribe. But without this legislation, and without this action
that will correct an injustice that has existed in Federal law
since 1987, the Ysleta del Sur Pueblo will lose its recognition
as a sovereign nation.
Due to an unfairly imposed one-eighth blood quantum
requirement by Congress that singles out the Tewa and coming
generations, they will lose their Federally recognized status,
and the right to self-govern their historic community.
Of the 565 Federally recognized Native American Tribes in
the U.S., the Ysleta del Sur Pueblo is one of the very few, if
not the only one, whose tribal membership criteria is
proscribed by the Federal Government, and not by the people of
the Tribe. Every other Native American Tribe has a right to
determine the criteria of its own membership based on customs,
traditions, language, and tribal blood.
According to a former Tewa Governor, the imposed blood
quantum requirement was the first time Congress had taken such
action since 1946, and has not done so since. None of the newly
recognized tribes since the Ysleta del Sur Pueblo have been
subjected to such blood quantum requirements by our Federal
Government.
My legislation corrects this inequity and the singling out
of the Ysleta del Sur Pueblo. It removes the one-eighth blood
quantum requirement in the Ysleta del Sur Pueblo in the Alabama
and Coushatta Indian Tribes of Texas Restoration Act of 1987.
It also allows the Tewa to determine their own criteria for
membership based on their own unique culture, heritage, and
traditions.
My legislation has no cost associated with it, and I ask
unanimous consent to submit two letters for the record from the
Bureau of Indian Affairs and the Department of Health and Human
Services that support this fact.
Mr. Hastings. Without objection, so ordered.
[NOTE: The two letters submitted for the record by Mr.
Reyes have been retained in the Committee's official files.]
Mr. Reyes. Thank you, Mr. Chairman. The Ysleta del Sur
Pueblo has been an important part of the community's history
for nearly 330 years. They are an important part of our
identity, and continue to make invaluable contributions to our
region's culture and heritage.
In addition, the Tribe is an important part of our regional
economy, providing employment opportunities to approximately
400 people.
As many of you know, I have been deeply committed to
correcting this inequity for many years. It has passed this
Committee and the House under both Republican and Democrat
leadership, in the 106th Congress and in the previous two
Congresses, as well.
I appreciate the opportunity that many of you have shown to
support this important legislation in the past, and in helping
us to rectify this inequity. Passage of this bill and its
enactment into law is critical to this historic tribe's
existence. By eliminating this unfair tribal enrollment
requirement, the Tewa will have the same rights afforded to
every other Federally recognized Native American Tribe, and
they will be able to preserve the unique heritage, based on
shared history, customs, and language, in addition to tribal
blood. This bill will ensure their survival as the oldest
community in Texas, and the only Pueblo still in existence in
the State.
I strongly urge your support again of this very important
legislation to our Tewa Tribe. I thank you for your attention.
[The prepared statement of Mr. Reyes follows:]
Statement of The Honorable Silvestre Reyes, a Representative in
Congress from the State of Texas, in support of H.R. 1560
Good morning, I would like to thank the Chairman and Ranking
Member, and the committee for holding this hearing on my legislation,
H.R. 1560, to grant the people of the Ysleta del Sur Pueblo the right
to determine their own membership. This historic federally-recognized
Native American tribe is the oldest community in Texas, and one of only
three Native American tribes in the state. The Tribal community, known
as ``Tigua,'' was established in 1682, after the Pueblo Revolt against
the Spanish colonization of the Americas, nearly a century before the
Declaration of Independence, and more than 160 years before the
annexation of Texas to the United States.
For over three centuries, the Tigua have maintained a vibrant
presence in my congressional district in El Paso, Texas, and are a
central part of our community's rich culture and heritage. Today, there
are nearly 1,700 enrolled members in the Tribe, but without legislative
action to correct an injustice that has existed in federal law since
1987, the Ysleta del Sur Pueblo will lose its recognition as a
sovereign nation. Due to an unfairly-imposed one-eighth blood quantum
requirement by Congress that singles out the Tigua, in the coming
generations, they will lose their federally-recognized status, and the
right to self-govern their historic community.
Of the 565 federally-recognized Native American tribes in the
United States, the Ysleta del Sur Pueblo is one of the very few, if not
the only one, whose tribal membership criteria is prescribed by the
federal government, and not by the members of the tribe. Every other
Native American tribe has the right to determine the criteria of its
own membership, based on its unique customs, traditions, and language,
in addition to tribal blood. According to a former Tigua governor, the
imposed blood quantum requirement was the first time Congress had taken
such action since 1946, and it has not done so since. None of the
newly-recognized tribes since the Ysleta del Sur Pueblo have been
subject to such blood quantum requirements by the federal government.
My legislation corrects this inequity and the singling out of the
Ysleta del Sur Pueblo. It removes the one-eighth blood quantum
requirement in the Ysleta del Sur Pueblo and Alabama Coushatta Indian
Tribes of Texas Restoration Act of 1987, and allows the Tigua to
determine their own criteria for membership based on its own unique
culture, heritage, and traditions.
My legislation has no cost associated with it, and I ask unanimous
consent to submit two letters for the record, from the Bureau of Indian
Affairs and the Department of Health & Human Services, that support
this fact.
The Ysleta del Sur Pueblo has been an important part of the
community's cultural heritage for nearly 330 years. The tribe is an
inseparable part of our history, and it should be allowed to preserve
its status as a sovereign nation for future generations.
As many of you know, I have been deeply committed to correcting
this inequity for many years. It has passed this committee and the
House under both Republican and Democratic leadership in the 106th
Congress and in the previous two Congresses. I appreciate the support
that many of you have shown in this effort and in helping to rectifying
this inequity.
Passage of this bill and its enactment into law is critical to this
historic tribe's survival. By eliminating this unfair tribal enrollment
requirement, the Tigua will have the same rights afforded to every
other federally-recognized Native American tribe, and will be able to
preserve their unique heritage based on shared history, customs, and
language, in addition to tribal blood. This bill will ensure the
preservation of Texas' oldest community, and the only remaining pueblo
in the state. I strongly urge your support of this legislation.
______
Mr. Hastings. I thank the gentleman for his testimony, and
I will recognize the gentleman from Montana, Mr. Rehberg, for
five minutes.
STATEMENT OF THE HON. DENNIS REHBERG, A REPRESENTATIVE IN
CONGRESS FROM THE STATE OF MONTANA
Mr. Rehberg. Chairman Hastings, Mr. Lujan, thank you for
inviting me to testify before the Subcommittee on my bill.
Before I begin, it is a privilege to welcome one of my
constituents here today, Joe Fox, to testify. Joe is Vice
President of the Northern Cheyenne Tribe, which is located in
southeastern Montana.
I introduced this Act to right a wrong that has been done
to the Northern Cheyenne. For more than 111 years, the Northern
Cheyenne have been deprived of controlling eight sections of
land on their reservation, the only subsurface rights on the
reservation they do not own. The Tribe does not own this
property because of an oversight of the United States more than
a century ago. The failure to remedy this oversight has gone on
for far too long. This legislation makes the Northern Cheyenne
whole again, which is why I am proud to sponsor it.
In 1900 the Federal Government failed to purchase eight
sections of subsurface property within the reservation. This
omission left those sections under control of the Northern
Pacific Railway, which has since been passed into Great
Northern Properties. The Tribe and Great Northern Properties
negotiated an agreement that provides for relinquishment by GNP
to the Tribe of these eight sections, or about 5,000 acres of
on-reservation subsurface coal owned by GNP.
In return, GNP will receive approximately 5,000 acres off-
reservation Federal coal located in Bowl Mountains and Bridge
Creek Federal coal tracks in Montana. This collaborative
legislation strikes a reasonable balance between all impacted
parties. The Tribe regains subsurface control, which makes
their land and resources contiguous and provides needed
revenue; and Great Northern Properties receives subsurface
access from two other areas in Montana currently owned by the
Federal Government.
This bill will provide much-needed impact funding for the
Northern Cheyenne, as well. The Tribe will receive 40 percent
of the royalties Great Northern Properties is paid from any
coal development that occurs on Federal land received by GNP as
compensation. This money will help alleviate some of the
challenges now faced on the reservation, whether it is for
health care, education, or infrastructure.
I would also like to mention that enactment of this
legislation will ensure that 280 miners at Signal Peaks Mine in
Mussel Shell County, Montana will keep their good-paying jobs.
Rural Montana desperately needs these jobs, and this bill will
provide an avenue for more coal production. This area has been
devastated by recent flooding, and Signal Peak Energy, the
mine's owner, has been integral in helping Roundup's residents
protect their businesses and homes. I want to thank them for
those efforts.
It is important to stress the bipartisan nature of this
legislation. This legislation had bipartisan support in 2002,
when the Board of Land Commissioners, which is comprised of the
top five elected officials in the State, entered into the so-
called Otter Creek settlement with the Northern Cheyenne. That
settlement was supported by the entire Montana Congressional
delegation. This legislation has also been introduced on the
Senate side by Sen. Baucus and Sen. Taster, and supported by
the Governor, Gov. Schweitzer.
As you know, Federal coal royalties are split between the
Federal Government and states. While both lose out on
royalties, the State supports the settlement and its job-
creating impacts. In return for the package of commitments, the
Tribe, in 2002, promptly dismissed, with prejudice, a Federal
Court lawsuit against the United States challenging the
transfer of the Otter Creek tracts to the State.
I am working with the Congressional Budget Office to
ascertain the cost to the Federal Government of the withdrawal
of royalties, but the Tribe's aforementioned claim could offset
the value of these royalties. The Tribe committed that in
return for the conveyance to it of the eight sections, it would
release any and all claims it may have against the United
States for its failure to acquire that subsurface. Furthermore,
$70 million in impact funding contemplated by the Tribe's Otter
Creek settlement has been deleted from the bill. Congress, as a
result, will not need to appropriate any funds for this
legislation upon passage.
With passage of this legislation, the American taxpayer
will avoid costly litigation, the Tribe will regain control of
its own resources and associated revenue, and the people of
America will benefit from the development of Montana's abundant
coal reserves. Coal can and should be a part of America's all-
of-the-above energy solution to ease prices while stimulating
job growth in our rural communities.
Because of everything the bill will do for the Northern
Cheyenne, H.R. 1158 has the support of the Montana-Wyoming
Tribal Leaders Council and the National Congress of American
Indians. This bill is the right thing to do.
Again, I want to thank you for allowing this opportunity. I
would like to enter a couple of letters into the record, if I
may, please.
Mr. Hastings. If you would identify the letters, we would
be more than happy to do those.
Mr. Rehberg. They are a letter of support from the Montana
Board of Land Commissioners, and a resolution passed by the
Montana-Wyoming Tribal Council, Leaders Council.
Mr. Hastings. Without objection, they will be part of the
record.
Mr. Rehberg. Thank you.
[The prepared statement of Mr. Rehberg follows:]
Statement of The Honorable Dennis Rehberg, a Representative in Congress
from the State of Montana--At Large, on H.R. 1158
Chairman Young and Ranking Member Boren, thank you for inviting me
to testify before the Subcommittee on H.R. 1158, the Montana Mineral
Conveyance Act.
Before I begin, it's a privilege to welcome one of my constituents
here today, Joe Fox Jr., to testify on this bill. Joe is Vice President
of the Northern Cheyenne Tribe, which is located in Southeastern
Montana, and he will be able to share with the Subcommittee the
importance of this legislation to the Northern Cheyenne. Montana's a
long way from Washington, and I appreciate his willingness to travel
across the country for this hearing.
I introduced the Montana Mineral Conveyance Act to right a wrong
that has been done to the Northern Cheyenne. For more than 111 years,
the Northern Cheyenne have been deprived of controlling eight sections
of land on their Reservation--the only subsurface rights on the
Reservation they do not own.
The Tribe does not own this property because of an oversight of the
United States more than a century ago. The failure to remedy this
oversight has gone on for too long. This legislation makes the Northern
Cheyenne whole again, which is why I'm proud to sponsor it.
In 1900, the federal government failed to purchase eight sections
of subsurface property within the Reservation. This omission left these
sections under control of the Northern Pacific Railway, which has since
been passed onto Great Northern Properties. The Tribe and Great
Northern Properties negotiated an agreement that provides for
relinquishment by GNP to the Tribe of these eight sections--or about
5,000 acres--of on-Reservation subsurface coal owned by GNP. In return,
GNP will receive approximately 5,000 acres of off-Reservation federal
coal located in the Bull Mountains and Bridge Creek federal coal tracts
in Montana.
This collaborative legislation strikes a reasonable balance between
all impacted parties. The Tribe regains subsurface control, which makes
their land and resources contiguous and provides needed revenue. Great
Northern Properties receives subsurface access from two other areas in
Montana currently owned by the federal government.
This bill will provide much-needed impact funding for the Northern
Cheyenne as well. The Tribe will receive 40% of the royalties Great
Northern Properties is paid from any coal development that occurs on
the federal land received by GNP as compensation. This money will help
alleviate some of the challenges now faced on the Reservation, whether
it's for healthcare, education or infrastructure.
I'd also like to mention that enactment of this legislation will
ensure that 280 miners at Signal Peak's mine in Musselshell County,
Montana will keep their good-paying jobs. Rural Montana desperately
needs these jobs, and this bill will provide an avenue for
uninterrupted coal production. This area has been devastated by recent
flooding, and Signal Peak Energy, the mine's owner, has been integral
in helping Roundup's residents protect their businesses and homes. I
want to thank them for their efforts.
It's important to stress the bipartisan nature of this legislation.
This legislation had bipartisan support in 2002--when the Montana Board
of Land Commissioners, which is comprised of the top five elected
officials in the State, entered into the so-called Otter Creek
settlement with the Northern Cheyenne. That settlement was supported by
the entire Montana Congressional delegation.
This bipartisan support continues. Senator Baucus has introduced
companion legislation in the Senate. And, the current Montana Board of
Land Commissioners, which has five Democrats, including Governor
Schweitzer, has sent a letter urging Congress to pass the bill. Today's
hearing is a great start.
As you know, federal coal royalties are split between the federal
government and the states. While both lose out on royalties, the state
supports the settlement and its job-creating impacts. In return for the
package of commitments, the Tribe in 2002 promptly dismissed with
prejudice a federal court lawsuit against the United States challenging
the transfer of the Otter Creek tracts to the State.
I'm working with the Congressional Budget Office to ascertain the
cost to the federal government of the withdrawn royalties, but the
Tribe's aforementioned claim could offset the value of these royalties.
The Tribe committed that, in return for the conveyance to it of the
eight sections, it would release any and all claims it may have against
the United States for its failure to acquire that subsurface.
Furthermore, $70 million in impact funding contemplated by the Tribe's
Otter Creek settlement has been deleted from the bill. Congress, as a
result, will not need to appropriate any funds for this legislation
upon passage.
With passage of this legislation, the American taxpayer will avoid
costly litigation, the Tribe will regain control of its own resources
and the associated revenue, and the people of Montana will benefit from
the development of Montana's abundant coal reserves. Montana has been
called the ``Saudi Arabia'' of coal. It's plentiful and relatively easy
to get to--when the government permits it. Coal can, and should be a
part of America's all-of-the-above energy solution to ease prices while
stimulating job growth in our rural communities.
Because of everything the bill will do for the Northern Cheyenne,
H.R. 1158 has the support of the Montana-Wyoming Tribal Leaders Council
and the National Congress of American Indians. This bill is the right
thing to do.
In closing, I want to thank Chairman Young and Ranking Member Boren
for holding a hearing on this legislation. I also want to thank the
Tribe and all those who've come together on this agreement. With your
permission, I'd like to submit for the record a letter of support from
the Montana Board of Land Commissioners and a resolution passed by the
Montana-Wyoming Tribal Leaders Council. Again, thank you, and I'd be
happy to answer any questions the Subcommittee may have.
______
[NOTE: The letters submitted for the record by Mr. Rehberg
have been retained in the Committee's official files.]
Mr. Hastings. I want to thank my colleagues for their
testimony. This Committee, unlike other committees, do question
Members. Other committees don't do that. I guess it is not
because we are not afraid of what you might say, but whatever
it is.
So I just have one question, and I think you alluded to
that in your testimony. But the potential is here, clearly, for
all of the above energy, if a tribe decides to exercise their
rights, if this bill should pass. Is that the essence of what
this bill is?
Mr. Rehberg. That is correct. It is a jobs-creator because
the property we are talking about, specifically the subsurface,
is in the way of, or in the path of an existing mine. And we
actually need to probably get, need to get something done
through Congress, and signed by the President, if we can, by
September, and the Senate is ready to fast-track this, as well.
Because it does affect 280 jobs at Signal Peak; it is something
that has a little time sensitivity.
So it is part of the all-of-the-above solution, and it is
part of the jobs package.
Mr. Hastings. Good. Well, I appreciate the gentleman's
response. I, too, am a very strong supporter of all-of-the-
above energy, and I recognize that the fossil fuels that we
have in this country are immense, and we should be utilizing
all of those that we possibly can, if that is what the decision
is.
Mr. Rehberg. Again, Mr. Chairman, and I would like to
stress that I really thank the Cheyenne Tribe for being willing
to drop the financial aspect. That is really what is going to
allow this to move forward. Because we are in a budget crisis;
we know that. I am having to try to find at least $25 billion
worth of reductions just in my Appropriations Subcommittee
alone.
And by their being willing to drop the financial aspect,
this goes a long ways toward helping us solve a fiscal crisis,
too. So it is jobs, it is all of the above, and it is helping
with our fiscal crisis.
Mr. Hastings. Well, I thank the gentleman for his
testimony. And when these agreements can be worked out before a
bill is introduced, obviously that is very, very helpful.
Mr. Rehberg. And unusual.
Mr. Hastings. I have no further questions. I will ask if
any of my colleagues want to ask any questions, rather than
going one by one. OK?
With that, Mr. Rehberg, thank you very much for your
testimony. I would like to ask that if there are further
questions from the Members, we would appreciate it if you could
respond in a timely manner.
Mr. Rehberg. I will indeed. Thank you, Mr. Chairman.
Mr. Hastings. Thank you. We will now call the next panel.
Our next witnesses are Jodi Gillette, the Deputy Assistant
Secretary for Indian Affairs. She is accompanied by Mitchell
Leverette of the Bureau of Land Management. Mr. Leverette is
the Division Chief for BLM's Solid Waste Materials Divisions.
Once again I remind that your testimony, Ms. Gillette, will
be entirely part of the record. You have five minutes. And you
heard that when the green light goes on, you have the five
minutes; yellow light, 30 seconds; and the red light, hopefully
you can wrap up.
So with that, gentlelady, you are recognized.
STATEMENT OF JODI GILLETTE, DEPUTY ASSISTANT SECRETARY FOR
INDIAN AFFAIRS, U.S. DEPARTMENT OF THE INTERIOR
Ms. Gillette. Good morning, Mr. Chairman and members of the
Subcommittee. My name is Jodi Gillette, and I am the Deputy
Assistant Secretary for Indian Affairs at the Department of the
Interior.
I am here today to provide the Department's position on
H.R. 1560, a bill to amend the Ysleta del Sur Pueblo and
Alabama and Coushatta Indian Tribes of Texas Restoration Act,
to allow the Tribe to determine blood quantum requirements for
membership in their Tribe, and H.R. 1158, the Montana Mineral
Conveyance Act.
It is an honor to appear today before this new and
important Subcommittee. I will testify first on H.R. l560, and
then H.R. 1158.
In 1987, Congress passed the Ysleta del Sur Pueblo and
Alabama and Coushatta Indian Tribes of Texas Restoration Act,
which restored the Federal trust relationship between the
Federal Government and the Ysleta del Sur Pueblo. The
Restoration Act proscribes membership for the Tribe to only
those individuals on the Tribe's 1984 membership roll and to
their descendants with at least one eighth or more Tewa Ysleta
del Sur Pueblo Indian blood, and who are enrolled by the Tribe.
H.R. 1560 would amend the Restoration Act to enable the
Tribe to determine for themselves the blood quantum
requirements, if any, for membership into the Tribe. This
amendment would allow the Tribe to determine their own
enrollment criteria, as any other Federally recognized tribe
has the right to do.
While the legislation would allow the Tribe to determine
the size of its own membership, the Department does not expect
an additional tribal priority allocation base funding amount to
be awarded to the Tribe. The Department supports the Tribe's
request to determine its criteria for membership, which is
consistent with the Administration's support for the policies
of self-governance and self-determination for all Federally
recognized tribes.
H.R. 1158 states that the Northern Cheyenne Tribe has been
wronged in two ways by the Federal Government. First in 1990,
when the reservation was expanded, the United States Indian
inspector made efforts to purchase private lands within the
reservation boundaries, but was unable to secure subsurface
rights in eight sections, about 5,000 acres, from Northern
Pacific Railway.
The mineral rights to the Cheyenne tracts, as they as
known, are now held by a successor of the railroad, Great
Northern Properties.
Second is the potential for mineral development of the
Otter Creek area, which is east of the Tribe's reservation. The
1998 Interior Appropriations Act authorized the conveyance to
the State of Montana of all the Federal mineral rights on three
Otter Creek tract parts, of which are located within three to
four miles of the Northern Cheyenne Reservation.
The Northern Cheyenne filed suit in the U.S. District Court
in the District of Columbia in January 2002, against the
Secretary of the Interior, to stop the transfer, and to assert
that extensive coal mining so close to the reservation would
violate several Federal laws and the Federal trust
responsibility to the Tribe.
The Tribe's suit was withdrawn, with prejudice, when the
Tribe entered into an agreement with the Montana State Board of
Land Commissioners, guaranteeing tribal consultation on the
approval of mining plans.
H.R. 1158 seeks to accomplish the conveyance to the Tribe
of about 5,000 acres in subsurface mineral rights that the
Tribe did not receive in 1900, when it acquired the rights to
the surface.
Great Northern Properties, under the bill, would receive an
exchange conveyance of all interest of the United States of
approximately 5,000 acres of unleased Federal coal rights in
Montana. The Department supports the goals of H.R. 1158, but
has some concerns, and would like to work with the Subcommittee
to make some refinements to ensure that the exchange is equal
value, and that the appraisals are done consistent with the
Department of Justice appraisal standards, and to make its
implementation practical.
H.R. 1158 would bring closure to the Tribe's claim against
the United States dating back to 1900, but at a cost to the
United States and the State of Montana in royalty payments and
other revenue associated with Federal coal leasing of these
lands.
Furthermore, the Bureau of Land Management estimates the
off-reservation Federal coal rights being conveyed to the Great
Northern Properties contain nearly twice as much coal as the
Cheyenne tracts contain.
In addition, we have some concerns with the language in
Section 4[a] and 5[c] requiring the conveyance to be carried
out ``notwithstanding any other Federal law,'' as well as the
language in Section 5[c] that require the conveyance to be
carried out within 90 days of receiving the revenue-sharing
agreement, and would like to work with the Subcommittee to
address these concerns.
Last, Section 3[2][d] should be amended to reference the
appropriate date of March 18, 2011.
Thank you again for the opportunity to testify on H.R. 1560
and H.R. 1158, and I would be glad to take any of your
questions.
[The prepared statement of Ms. Gillette follows:]
Statement of Jodi Gillette, Deputy Assistant Secretary, Indian Affairs,
U.S. Department of the Interior, on H.R. 1158
Good morning Mr. Chairman and Members of the Subcommittee. My name
is Jodi Gillette. I am the Deputy Assistant Secretary for Indian
Affairs at the Department of the Interior (Department). I am here today
to provide the Department's position on H.R. 1158, the Montana Mineral
Conveyance Act. It is an honor to appear today before this new and
important Subcommittee.
H.R. 1158 seeks to accomplish the conveyance to the Northern
Cheyenne Tribe (Tribe) in Montana of about 5,000 acres in subsurface
mineral rights that the Tribe did not receive in 1900, when it acquired
the rights to the surface. The subsurface rights are held by a third
party, Great Northern Properties, which, under the bill, would receive
in exchange approximately 5,000 acres of unleased Federal coal rights
in Montana.
The Department of the Interior supports the goals of H.R. 1158, but
has some concerns and would like to work with the Committee to make
some refinements to ensure that the exchange is equal value and to make
its implementation practical. We would like to work with the Sponsor
and the Subcommittee to ensure that the exchanges of mineral interests
are of equal value and that the appraisals are done consistent with
Department of Justice appraisal standards.
BACKGROUND
H.R. 1158 states that the Northern Cheyenne Tribe has been wronged
in two ways by the Federal Government. In 1900, when the reservation
was expanded, the United States Indian Inspector made efforts to
purchase private lands within reservation boundaries, but was unable to
secure subsurface rights in eight sections, about 5,000 acres, from the
Northern Pacific Railway. The mineral rights to the Cheyenne tracts, as
they are known, are now held by a successor of the railroad, Great
Northern Properties.
Great Northern Properties has other mineral holdings in the area,
including some near the lands containing the mineral rights they would
receive in exchange for relinquishing the Cheyenne tracts. These
holdings are in an area called Otter Creek, east of the Reservation. It
is the potential mineral development of the Otter Creek area that leads
to the second claim the Northern Cheyenne Tribe asserts it has against
the Federal Government.
The Department of the Interior Appropriations Act of 1998
authorized the conveyance to the State of Montana of all the Federal
mineral rights on three Otter Creek tracts, parts of which are located
within 3 to 4 miles of the Northern Cheyenne Reservation.
The Northern Cheyenne filed suit in the U.S. District Court in the
District of Columbia in January 2002 against the Secretary of the
Interior, to stop the transfer and to assert that extensive coal mining
so close to its reservation would violate several Federal laws and the
Federal trust responsibility to the Tribe.
The Tribe's suit was withdrawn with prejudice when the Tribe
entered into an agreement with the Montana State Board of Land
Commissioners guaranteeing tribal consultation on the approval of
mining plans. The agreement also requires the State Board's support of
the legislation before you today.
H.R. 1158
H.R. 1158 requires the Secretary of the Interior to convey to Great
Northern Properties all interest of the United States in specified
unleased Federal coal tracts in Montana outside of the Tribe's
reservation, if Great Northern Properties conveys to the Northern
Cheyenne Indian Tribe all its mineral interests underlying specified
tracts of land within the Tribe's reservation.
The bill also requires the Northern Cheyenne Tribe to waive legal
claims related to the failure of the United States to acquire in trust
for the Tribe the private mineral interests underlying the Cheyenne
tracts as part of the Tribe's reservation. These waivers should be
drafted and included in the bill. The bill instructs the Tribe and
Great Northern Properties to notify the Secretary in writing when they
have agreed to a formula for the sharing of revenue from the coal
produced from the Federal tracts. Finally, we recommend that Great
Northern Properties also waive its potential claims against the United
States.
H.R. 1158 would bring closure to the Tribe's claim against the
United States dating back to 1900, but at a cost to the United States
and State of Montana, in royalty payments and other revenue associated
with Federal coal leasing of these lands. Furthermore, the Bureau of
Land Management (BLM) estimates the off-reservation Federal coal rights
being conveyed to Great Northern Properties contain nearly twice as
much coal as the Cheyenne tracts contain.
In addition, a portion of the Federal tracts that the bill defines
as subject to transfer to Great Northern Properties is included in an
ongoing Lease by Application process initiated in 2008 by Signal Peak
Energy, which operates an underground coal mine in the area. An
Environmental Assessment has been completed for this lease sale, and
BLM signed a Finding of No Significant Impact and Decision Record in
April 2011. The decision was made to offer the Bull Mountain No. 1 Mine
Coal Lease by Application for sale.
If the lease sale is completed before this legislation becomes law,
20 percent of the bidder's bonus payment would be due when the bid is
submitted with the balance of the bonus due when the lease is awarded.
If a successful bonus bid is received at the sale and all of the other
requirements are met, then the payment is sent to the U.S. Treasury
with 48 percent obligated to the State of Montana. If the conveyance
under this legislation is consummated before the actual issuance of the
coal lease, then the Federal Government would not receive the balance
of the bonus payment.
In addition, we have concerns with language in section 4(a) and
5(c) requiring the conveyance be carried out ``notwithstanding any
other Federal law'' as well as the language in Section 5(c) that
requires the conveyance be carried out within 90 days of receiving the
revenue-sharing agreement and would like to work with the subcommittee
to address these concerns. Lastly, section 3(2)(D) should be amended to
reference the appropriate date of March 18, 2011.
CONCLUSION
Thank you again for the opportunity to testify on the Montana
Mineral Conveyance Act. BLM would be glad to work with the Committee on
any technical issues associated with the land conveyance. I would be
glad to answer your questions.
______
Statement of Jodi Gillette, Deputy Assistant Secretary, Indian Affairs,
U.S. Department of the Interior, on H.R. 1560
Good morning Mr. Chairman and Members of the Subcommittee. My name
is Jodi Gillette. I am the Deputy Assistant Secretary for Indian
Affairs at the Department of the Interior (Department). I am here today
to provide the Department's position on H.R. 1560, a bill to amend the
Ysleta del Sur Pueblo and Alabama Coushatta Indian Tribes of Texas
Restoration Act to allow the Ysleta del Sur Pueblo Tribe to determine
blood quantum requirements for membership in their Tribe. The
Department supports H.R. 1560.
BACKGROUND
In 1987 Congress passed the Ysleta del Sur Pueblo and Alabama and
Coushatta Indian Tribes of Texas Restoration Act (Restoration Act),
which restored the federal trust relationship between the federal
government and the Ysleta del Sur Pueblo (Tribe).
The Restoration Act, (25 U.S.C. Sec. 1300G-7(a)(2)(i)), prescribes
membership for the Tribe to only those individuals on the Tribe's 1984
Membership Roll, and to their descendants with at least 1/8 or more
Tigua-Ysleta del Sur Pueblo Indian blood and who are enrolled by the
Tribe. This codified criterion has been adopted into Article 3, Section
3.01, of the Ysleta del Sur Pueblo Code of Laws. Currently the tribal
enrollment for the Ysleta Del Sur Pueblo is 1,691 members. Indian
Affairs cannot find any other instances where a Tribe's membership is
bound by a blood quantum requirement under Federal statute.
H.R. 1560
H.R. 1560 would amend the Restoration Act to enable the Tribe to
determine for themselves the blood-quantum requirements, if any, for
membership into the Tribe. The proposed amendment would delete the 1/8
blood quantum requirement and replace the current requirement with
``any person of Tigua-Ysleta del Sur Pueblo Indian blood enrolled by
the tribe.'' This amendment would allow the Tribe to determine their
own enrollment criteria, as any other federally-recognized tribe has
the right to do.
While the legislation would allow the Tribe to determine the size
of its own membership, the Department does not expect an additional
Tribal Priority Allocation base funding amount to be awarded to the
Tribe.
Indian tribes have the inherent authority to determine their
membership. The Supreme Court has noted, ``A tribe's right to define
its own membership for tribal purposes has long been recognized as
central to its existence as an independent political community.'' See
Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978). The Department is
in receipt of copies of tribal resolutions from the Ysleta del Sur
Pueblo Tribal Council in support of the change to the blood quantum
requirements stated within the legislation. The Department supports the
Tribe's request to determine its criteria for membership, which is
consistent with the Administration's support for the policies of Self-
Governance and Self-Determination for all federally recognized tribes.
CONCLUSION
This concludes my prepared statement. I will be happy to answer any
questions the Subcommittee may have.
______
Mr. McClintock. [Presiding.] Thank you very much, and that
is what we will do now. I have just one question for you, and
that is, this does deal with sovereignty issues, does it not?
Ms. Gillette. Correct.
Mr. McClintock. Well, why would the Department object to
the phrase ``notwithstanding any other law?'' Sovereignty is
absolute, is it not?
Ms. Gillette. Sovereignty is, I am sorry?
Mr. McClintock. Absolute. You are either sovereign or you
are not.
Ms. Gillette. I would like to get back to you on that,
unless you have a response, if I could.
Mr. McClintock. All right, I appreciate that. That is my
only question. I will defer to the Ranking Member, Mr. Lujan.
Mr. Lujan. Thank you very much, Mr. Chairman. In regards to
H.R. 1560, Ms. Gillette, what was the policy behind the Federal
Government setting the one-eighth-degree blood quantum
threshold to the Tewa Indians in the Restoration Act?
Ms. Gillette. The funding? I am sorry.
Mr. Lujan. What was the policy behind the establishment of
that policy?
Mr. Lujan. Of establishing--I don't think that the
Department, I think Congress put that into the law. Are you
talking about the one-eighth-degree blood quantum?
Mr. Lujan. Correct.
Ms. Gillette. I am not, I don't believe that we had a
policy on that. I don't----
Mr. Lujan. It was at the direction of Congress that the
Department established the one-eighth-degree threshold?
Ms. Gillette. Actually, it is part of the recognition, or
the Restoration Act that was passed by Congress. So the
Department doesn't have blood quantum requirements as part of
how they interact with tribes; that is an inherent sovereign
right of tribes to determine their own membership.
Mr. Lujan. So going back to your testimony, it appears to
indicate that the Administration supports H.R. 1560, is that
correct?
Ms. Gillette. That is correct.
Mr. Lujan. In regards to H.R. 1158, in your testimony you
imply that the land exchange authorized by this bill would
result in a windfall profit in royalties to GNP. This statement
is based on an estimate that the underlying mineral estate on
the Federal tracts is worth twice as much as the mineral estate
underlying the Cheyenne tracts.
Yet this bill would settle claims against the United States
that could be worth millions in liability. Moreover, the bill
would compensate the Tribe for its loss by authorizing a
revenue-sharing agreement with GNP for any coal developed on
these tracts.
As trustee, isn't it in the Department's interest to see
this bill enacted so as to close the door on its liability,
rather than engage in potential costly litigation?
Ms. Gillette. I believe that it is in the best interest for
all parties that we are supportive of the legislation. I
believe that the Department would like to work with the
Subcommittee to address some of those concerns of valuation,
and we would like to have further discussion with that.
Mr. Lujan. Mr. Kerr--oh, he is on the next panel. I
apologize.
Ms. Gillette, on the 20 percent of the bidder's bonus
payment is due to the United States when the bid for a lease
sale is submitted, and the remainder of such payment is due
when the lease is awarded. What is a bonus payment?
Mr. Leverette. Yes. A bonus payment is a payment that the
successful bidder pays, or a bidder pays when they are bidding
on a competitive co-lease. A competitive co-lease consists of
three payments: the royalty payment, which is for underground
mines, 8 percent; the bonus bid; and the rental, if production
is not occurring.
So the bonus is a payment that is made over and above the
royalty payment, and you bid that bonus at the time of the
competitive bid or the competitive sale. The normal process is
20 percent is due at the time of the bid. And we have a policy
that some sales can pay the balance over five years, but for
this sale we are trying to, the payment would be required, the
full payment would be required at the issuance of the lease.
Mr. Lujan. So under the current policy, the remaining
portion or time period for that bonus payment is five years? Is
that what I just heard?
Mr. Leverette. Yes.
Mr. Lujan. Is the 20/80 percent scheme current policy?
Mr. Leverette. Yes. And the policy says that some sales, we
should do the deferred bonus, but it doesn't say we have to do
all of them that way.
Mr. Lujan. I appreciate it. Thank you very much, Mr.
Chairman.
Mr. McClintock. Mr. Gosar.
Dr. Gosar. More of a comment, Ms. Gillette, in regards to
the appraisal process. We are finding that in Arizona, as well
as in any other appraisal process, this is arduous. So I would
hope that we would have a streamlined effect in that appraisal
process. Because that will be the holdup. Because we are seeing
that all the way across the board.
So I would actually urge some urgency in regards to
streamlining that appraisal process.
And then just a real quick question also to my colleague on
the other side of the aisle. It is Congress's jurisdiction in
regards to oversight of the tribes, is it not?
Ms. Gillette. I believe so.
Dr. Gosar. Thank you.
Mr. McClintock. Are you done? That is it? OK. Ms. Hanabusa.
Ms. Hanabusa. Thank you, Mr. Chair. Ms. Gillette, going
back to H.R. 1560, it seems that one of the uniqueness of what
has led to this bill is the fact that in 1968, when the Tribe I
guess was first recognized, for some reason the fiduciary
responsibility was transferred to the State of Texas, it
appears. And somehow the Restoration Act then took that back.
Am I correct about that?
Ms. Gillette. Yes.
Ms. Hanabusa. And the one-eighth blood quantum, was that
something that was instituted in 1968? Or was that something
that happened in the Restoration Act?
Ms. Gillette. I would have to check back on the record for
that. But in the Restoration Act, that is where the blood
quantum was specified as part of the legislation, so it was
actually in the Act.
Ms. Hanabusa. Is there a reason why, or are you aware of
the reason why the transfer or the taking back from the State
of Texas of this responsibility, in the Restoration Act? Was
there something improper about the original transfer of that
obligation to the State of Texas?
Ms. Gillette. I am not sure. I am sorry, I don't have the
specifics of that history.
Ms. Hanabusa. Could you get back to me on that?
Ms. Gillette. Sure.
Ms. Hanabusa. Switching to H.R. 1158, in reviewing the bill
itself, there is, of course, Section 5, which speaks to the
waiver of legal claims. That statement is also found in Section
2, subpart [8]. And it just refers to the Tribe will waive all
legal claims against the United States.
Is there a process where, for example, the Secretary would
be satisfied that the Tribe has waived? In other words, you
know, I don't want to see us faced with some other kind of
class action suit because the waiver is improper.
So in your mind, when this says the Tribe will waive, who
or what type of transaction is going to be necessary to ensure
that there has been a proper waiver?
Ms. Gillette. I will have to get back to you on that. I am
not sure what the--that is probably a question that I would ask
my solicitor.
Ms. Hanabusa. OK. Now, in addition to that, along those
same lines, in reading your testimony, you also recommend that
the Great Northern Properties waive its potential claims
against the United States as well. I did not find anything like
that in the bill. So you are asking that a section like that be
included?
Ms. Gillette. That is correct.
Ms. Hanabusa. When you are asking for their waiver of
potential claims against the United States, what kinds of
claims were you thinking of when that was written into your
testimony?
Ms. Gillette. I will defer to my colleague.
Mr. Leverette. I think we were thinking of some type of
takings claim for their resources on the reservation, their
mineral resources.
Ms. Hanabusa. That is what I thought you were going to say.
So are you saying that though it appears that we are talking
about the same kinds of claims, both that the Tribe would have
for our failure to protect their interests and the underlying
mineral rights; and then you are also saying that the Great
Northern Properties has basically somehow vested in those same
claims? Is that what the concern is?
Because we are talking about the same mineral rights,
aren't we? Subsurface mineral rights.
Mr. Leverette. Yes.
Ms. Hanabusa. So you are saying that you believe that what
has happened in this transaction is that the tribes have a
legal claim, because the government did not protect their
interests in those claims; and Great Northern Properties,
through this action way back when, is somehow vested in the
same rights, even if the government may not have legally
protected the people who truly have the rights to those claims?
Am I understanding you correctly?
Mr. Leverette. Yes, and that is what this bill is doing. It
will give Great Northern additional mineral rights, and convey
the subsurface minerals to the tribe on the reservation. And
once that agreement is made, we would hope that all the
litigation would, would be removed, or not brought.
Ms. Hanabusa. I think I understand what you are saying. But
can you write up for me as well these potential claims against
the United States that you are envisioning? And this is on page
2, paragraph, the second paragraph under H.R. 1158. Thank you
very much. Thank you, Mr. Chair.
Mr. McClintock. Thank you. I want to thank Ms. Gillette for
her testimony today, and for Mr. Leverette's expertise. We will
now dismiss this panel, and I will call up our final panel of
witnesses this morning.
They are Joe Fox, the Vice President of the Northern
Cheyenne Tribe; Carlos Hisa, the Lieutenant Governor or the
Ysleta del Sur Pueblo; and Charles Kerr, President and CEO of
Great Northern Properties.
Again, as a reminder, your oral statements are limited to
five minutes. However, your written statement will appear in
full in the hearing record. We thank you for joining us this
morning.
Also to remind you the microphones are manually activated,
so be sure to push that button and get that green light on your
microphone base. And we have the lighting system, which has
already been explained. So with that, I will introduce again
the Hon. Joe Fox, Jr., Vice President of Northern Cheyenne
Tribe.
STATEMENT OF JOE FOX, JR., VICE PRESIDENT,
NORTHERN CHEYENNE TRIBE
Mr. Fox. Good morning, Mr. Chairman, Subcommittee members.
I am Joe Fox, Jr., Vice President of the Northern Cheyenne
Tribe. Thank you for the opportunity to convey my Tribe's total
support of H.R. 1158.
We greatly appreciate Rep. Rehberg's championing of this
much-deserved bill for our Tribe. At this time I would like to
introduce two gentlemen, William Walksalong, former Chairman of
the Northern Cheyenne Tribe, also Administrative Assistant to
the President's Office, LeRoy Spain, and also Steve Chestnut,
Chief Legal Counsel for the Northern Cheyenne Tribe. These two
gentlemen have been involved in this bill process for 18 years.
The following summarizes somewhat the points discussed at
greater length in my written submission to the Committee on
H.R. 1158. It is of tremendous importance to my people. We have
been pursuing remedies for the issues it addresses for decades.
Our reservation is truly the homeland of the Northern
Cheyenne people. Ninety-nine percent of the surface is owned
and controlled and used by the Northern Cheyenne, and 90
percent of the resident population is Northern Cheyenne. Of all
subsurface, except for each section of subsurfaces owned by
Great Northern Properties, have been addressed by H.R. 1158, is
owned by the Tribe as a whole.
H.R. 1158 will correct a 111-year-old Federal error, which
had an unintended effect of denying the Tribe, from 1900 to the
present, ownership of these eight sections of subsurface. H.R.
1158 would consolidate our land base, prevent development of
that subsurface without our consent, and otherwise protect our
homeland. Protection of our reservation is of the greatest
importance to us.
H.R. 1158 will also help address a major problem which has
plagued us for 40 years, arising from the intensifying pattern
of coal-related development encircling our reservation. Much of
this development has been sponsored and facilitated by the
Tribe's trustee, the United States, and has provided vast
revenues to the United States.
As shown on two maps attached to my written statement, our
reservation has been surrounded by coal-related development.
Although the development provides tremendous revenue in the
form of bonuses, rents, royalties, and multiple tax revenues to
the United States, the State and its subdivisions, we receive
none of that revenue.
Also, the Tribe and its members barely share in the upside
of the development, such as jobs, commercial opportunity,
although our unemployment rate averaged around 65 percent.
Thus, we get negatives and virtually none of the positives of
the nearby development that surrounds our homeland.
Public services and facilities on the reservation are
chronically substandard and inferior to those of the off-
reservation communities. This is made worse by the increasing
pressures of surrounding development.
H.R. 1158 would enable the Tribe to acquire, from GNP at
least, a 40 percent interest in the royalties. GNP would
receive from the leasing of the coal tracts, GNP would receive,
under H.R. 1158, the Bowl Mountain tracts. And if ever
developed, the Bridge Creek tracts. Thus, for the first time,
the Tribe would receive development-related funding to address
the substandard and declining conditions on the reservation.
The funding would come from royalties received by GNP under an
arrangement the Tribe conceived, and then negotiated with GNP.
H.R. 1158 is a key element of the comprehensive settlement
arrangements developed and negotiated by the Tribe with the
Montana Congressional Delegation. Sen. Campbell, State of
Montana, Great Northern Properties, in consultation with the
Secretary of the Interior, Gale Norton, and a bill in Montana
State Office and the Bureau of Indian Affairs.
The Tribe initiated that settlement effort in 2001,
triggered by Federal legislation causing the transfer of the
Federal Otter Creek coal tracts to the State of Montana. Those
massive tracts lie just east of our reservation, and combine
with adjoining private and State coal, contain about 1.2
billion tons of minable coal.
It was very difficult to achieve this settlement. Many
parties were involved, and we pursued it with great
determination and honor all settlement commitments we made,
including dismissal of litigation we had filed against the
United States challenging the Otter Creek transfer.
The settlement arrangements also called for Federal
legislation that would provide $70 million in Federal impact
funding to the Tribe. Unfortunately, we had to delete the
funding from the bill with the current Congressional realities.
Therefore, the impact funding we would now receive is from
royalty interests we proposed and negotiated with GNP. In the
future, our Tribe will continue to pursue the $70 million in
impact funding.
[The prepared statement of Mr. Fox follows:]
Statement of Joe Fox, Jr., Vice President,
Northern Cheyenne Tribe, on H.R. 1158
Chairman Young and Committee Members, I am Joe Fox, Jr., Vice
President of the Northern Cheyenne Tribe of Montana. I was elected as
Vice President for a four-year term by vote of our Tribal membership.
Prior to that, I was elected by the people to multiple terms on our
Tribal governing body, the 11-person Northern Cheyenne Tribal Council.
I am pleased to be here today to testify on behalf of the Northern
Cheyenne Tribe in strong support of H.R. 1158, the Montana Mineral
Conveyance Act. I am accompanied by Steve Chestnut, who has been the
Tribe's principle attorney since 1973, and has represented the Tribe in
all of the matters referred to in our submissions to the Committee.
If H.R. 1158 is enacted, several long-standing paramount issues for
the Northern Cheyenne will finally be resolved. First, our Reservation
will finally be made whole by rectifying an error made by the United
States over a century ago. Second, commitments made to the Tribe in
2002 by the Montana Congressional delegation, others and the State of
Montana to help mitigate the adverse effects on our Tribe and
Reservation of 40 years of coal-related development encircling our
Reservation, largely sponsored and facilitated by the Federal
Government, notwithstanding its trust responsibilities to the Tribe,
will be fulfilled. H.R. 1158 will enable the provision to the Tribe by
Great Northern Properties (GNP) of a desperately needed revenue stream
to help mitigated the many impacts of the encircling development on our
Reservation and people. This pattern of development culminated most
recently in the Congressionally-directed transfer to the State of
Montana in 2002 of the massive federal Otter Creek coal tracks adjacent
to our reservation.
Attached to my written statement is a document that summarizes the
Northern Cheyennes' dramatic struggles over the past 40 years with that
coal-related development, which provides perspective on why the
enactment of the Montana Mineral Conveyance Act is just and
appropriate. I also have attached copies of a letter signed by each
member of the State of Montana's Board of Land Commissioners
(consisting of the State's five top elected officials), a resolution of
the Montana-Wyoming Tribal Leader's Council, and a resolution of the
National Congress of American Indians, each supporting H.R. 1158 and
urging its passage. Finally, I have included two maps--one showing how
our Reservation has been encircled by coal-related development
projects, and another showing our Reservation, its communities and the
network of on-Reservation roads serving those off-Reservation projects.
As discussed in greater detail herein, these projects visit extensive
unmitigated impacts on our Reservation and people, while the Tribe and
its members are excluded from the compensating benefits (impact
funding, employment, and commercial opportunity) of such development.
We Northern Cheyenne cherish our land. To us, our land is
everything. It has provided for our families for centuries. After we
were forcibly relocated to the Oklahoma Territory in 1878 as
retribution for our resistance to White domination and our
participation in the Battle of the Little Bighorn (the Custer Battle),
we (uniquely among all other tribes so relocated) trekked back to our
historic homeland in Montana. This journey came at great cost to the
Tribe--death, imprisonment and other deprivations--as we were hounded
along the way by thousands of hostile military and settlers. We
eventually made it back to Montana to reclaim our homeland and the
Northern Cheyenne Reservation was later formally established by
Presidential Executive Order in 1884.
Today the Northern Cheyenne Reservation is bordered on the west by
the much larger Crow Indian Reservation and on the east by the Tongue
River. Our Reservation is truly the homeland of the Northern Cheyenne.
The Reservation population is approximately 90% Northern Cheyenne. Non-
Indian presence on the Reservation is minimal. A majority of our more
than 9000 Tribal members reside on the Reservation. Traditional
Cheyenne values and culture still thrive on the Reservation and the
Cheyenne language is still spoken. The Reservation remains culturally
distinct from the surrounding land and communities.
Of its 447,000 acres, 99% of the Reservation surface is owned,
controlled and used by the Tribe and its members. The primary land uses
are cattle grazing, timber harvesting (entirely suspended for years due
to adverse market conditions), and ceremonial and subsistence use. Non-
Indian use of Reservation lands is minimal. The entire Reservation
mineral estate--except for the eight sections that are the subject of
H.R. 1158--is owned by the Tribe as a single entity. Because of the
paramount importance to us of our land, we have a sacred duty to pursue
ownership of the eight sections. Securing ownership of those eight
sections has been a priority of the Northern Cheyenne for decades and
H.R. 1158 will finally accomplish that goal.
The eight sections of subsurface are also of great commercial
value--50 years ago, the then-owner Burlington Northern Railroad--
leased that subsurface to Peabody Coal Company for valuable
consideration. Although those leases are no longer in force, we don't
want to suffer that experience again. But, without ownership of that
subsurface, we at best have limited power over, and would suffer
impacts and gain scant benefits from, its development.
We have been continuously deprived of ownership of the eight
sections because of a federal error which occurred at the end of the
19th century. Because of hostilities and violence then prevailing
between Northern Cheyenne and legal and illegal non-Indian settlers on
or adjacent to the Tribe's 1884 Reservation, Congress directed Indian
Inspector James McLaughlin to buy out the legal and non-Indian illegal
interests on and near the Reservation, so that the Reservation could be
enlarged eastward to the middle of Tongue River. McLaughlin proceeded
to do so, paying the legal and illegal settlers between $1500 and $2000
per claim. In contrast, Inspector McLaughlin paid only $25 per family
to Northern Cheyennes then living on federal land previously allocated
to them east of the Tongue River. The Reservation was then expanded
eastward to mid-channel of the Tongue River by Presidential Executive
Order in 1900.
In performing his duties, Inspector McLaughlin made a critical
error. Although he purchased all lands within the Reservation (as
expanded) then owned by Northern Pacific Railway, Inspector McLaughlin
missed eight sections of subsurface beneath surface the Railway had
previously conveyed to others. For 111 years, the United States has
failed to remedy this error by buying this valuable mineral estate for
the Tribe. Approximately 20 years ago, Great Northern Properties (GNP)
purchased the entire inventory of railroad subsurface in Montana and
elsewhere, including the eight sections on the Northern Cheyenne
Reservation. With the willing cooperation of GNP and the Tribe, the
United States is now in a position to remedy that continuing federal
omission. The Northern Cheyenne have waited many decades for this
opportunity.
The Northern Cheyenne Reservation lies in the heart of Montana's
Powder River coal region. As shown in the attached maps, the
Reservation is surrounded on all sides by major existing and proposed
coal-related projects and includes a network of roads used by these
off-Reservation projects to travel through the reservation and the
region. This pattern of development produces major influxes of
newcomers to the area and leads to undesirable socio-economic effects
on the Tribe, including on-Reservation crime, traffic and accidents.
Because Tribal government lacks adequate legal authority and resources
to deal with these non-Indian incursions, there are heightened tensions
between Tribal members and non-Indian intruders.
Public services and facilities on the Reservation have long been
grossly inadequate, both in absolute terms and in marked contrast to
off-Reservation communities. The surrounding development increases
pressures on those public services and facilities. Severe deficits have
been documented Reservation housing, water and sewer, solid waste,
education, health care, law enforcement, fire protection, and
transportation. Those deficits increase as on-and off-Reservation
populations increase with development.
With no tax base and minimal on-Reservation economic development,
the Tribe thoroughly lacks the financial resources to address these
socio-economic impacts and respond to the increased demands. In
contrast, the surrounding development produces tremendous public
revenues (lease bonuses, rents and royalties, state production taxes,
real and personal property taxes, and other exactions) for the United
States, the State and the counties and municipalities adjoin the
Reservation. The Tribe is privy to none of these public revenues.
Also, although the Northern Cheyenne constitute the largest
indigenous community in the immediate area, and suffer chronic
unemployment rates averaging 65%, very few Northern Cheyenne are
employed in these off-Reservation projects. Indeed, reservation
unemployment rates have not improved during the course of this
development of coal mines and power plants in the vicinity of the
Reservation. Historically, Native Americans employment in Montana's
Powder River Basin mines has averaged approximately only 3.5% of the
total labor force, absent any special hiring agreement mandates, even
though the Northern Cheyenne represent the area's largest, most
available and neediest labor pool. State law does not authorize the
holders of State mining leases to offer any employment preferences to
local Native Americans. Relief in this area occurs only in the few
situations where the Tribe, through aggressive legal action, wrests a
special employment program from a typically hostile project, with
predictable ensuing enforcement difficulties. The bottom line is that
average per capita income on the Northern Cheyenne Reservation is a
minor fraction of that in surrounding communities, and the Tribal
unemployment rate is many multiples of the off-Reservation rate.
In summary, because of the very weak economic ties between the
Reservation and surrounding off-Reservation communities, the Northern
Cheyenne have not shared in the economic gains from regional coal
development. The Reservation does not benefit significantly in terms of
jobs, construction contracts, general business activity, or increases
in Tribal governmental revenues from the regional increase in economic
activity generated by additional off-Reservation coal development.
Thus, the Northern Cheyenne suffer an array of major adverse impacts
from the off-Reservation (largely federally-sponsored or facilitated)
coal-related development and enjoy few, if any, of the compensating
benefits enjoyed by the United States, the State and surrounding
communities and residents.
The Congressionally-directed transfer in 2002 of the massive
federal Otter Creek Coal Tracts to the State of Montana perpetuates and
exacerbates these inequities. The Otter Creek Tracts comprise about
8,000 acres of coal lands along both sides of Otter Creek south of
Ashland, Montana, and just east of the Northern Cheyenne Reservation.
The Tracts are estimated to contain 533 million tons of recoverable
coal reserves. The surface rights to the Otter Creek Tracts are held by
private landowners, the State of Montana and the Bureau of Land
Management. Otter Creek is a tributary of the Tongue River, which forms
the eastern boundary of the Northern Cheyenne Reservation.
Although outside the boundaries of the Reservation, the Otter Creek
Valley is within the ancestral territory of the Northern Cheyenne.
Following bloody conflicts between the United States government and the
Tribe in the latter part of the 19th century, the United States
reserved lands for the Northern Cheyenne both east and west of the
Tongue River. With the assistance of the United States, many Northern
Cheyenne families homesteaded under federal law east of the Tongue
River along Otter Creek. These families were later induced to move by
the federal government, for unconscionably low consideration of $25 per
family, onto the Northern Cheyenne Reservation when the final
boundaries of the Reservation were established in 1900. Consequently,
the Otter Creek area has great legal, historical and cultural
importance to the Tribe and its members. Ancestors of current Tribal
members are buried in the Otter Creek are.
For the past 40 years, all of the foregoing Northern Cheyenne
concerns and issues regarding encircling coal-related development have
been very publically and repeatedly raised by the Northern Cheyenne to
the United States, the State and industry, as described in the memo
submitted contemporaneously herewith. Most recently, the Tribe did so
in connection with the plan to transfer the Otter Creek Tracts to the
State.
The Otter Creek Tracts contain more than half a billion tons of
federal coal and are checkerboarded with more than 700 million tons of
private and other State coal. The result is the single largest block of
currently available, developable coal reserves in Montana. Those
resources have now been entirely leased to a wholly-owned subsidiary of
Arch Coal, Inc., the Nation's second largest coal mining company, and
Arch is aggressively proceeding toward development.
Out of the above concerns, the Tribe, in extensive correspondence
and meetings with all major interests, strongly and repeatedly
expressed opposition to the proposed transfer of the Otter Creek tracts
to the State, without accompanying mitigation measures. Solely on its
own initiative, throughout 2001 the Tribe met separately and
extensively with members of Congress, the Governor, the other top
elected officials of the State, the Secretary of the Interior, BLM,
BIA, industry and other interested parties, while the Secretary honored
a commitment sought and obtained by the Tribe to withhold the Otter
Creek transfer while the Tribe pursued settlement discussions.
With scant resources for travel, professional assistance and other
necessary expenses--but armed with a long and remarkably successful
record of advocating and demonstrating the legitimacy of its concerns--
the Tribe's settlement initiative bore fruit:
1. The Tribe proposed and successfully negotiated and drafted
a Settlement Agreement with the Montana Board of Land
Commissioners, which committed the State to the following:
a. In leasing the Otter Creek Tracts to industry, the
State will require that the lessee, in close
consultation with the Tribe, adopt special Operating
Plans aimed at providing:
- enhanced Project employment opportunity to
Indians (principally Northern Cheyennes),
including training at all levels and for
advancement;
- enhanced opportunity to Northern Cheyenne
businesses to obtain Project contracts for
goods and services;
- an on-Reservation conduct program designed
to encourage Project employees and truckers to
behave appropriately while on the Reservation;
- enhanced environmental protection for the
Reservation; and
- enhanced protection for Northern Cheyenne
historic, cultural, religious and burial sites
in the conduct of Project operations.
b. State Land Board support for the improvement of
certain off-Reservation roads in the area.
c. State Land Board support for cooperative law
enforcement agreements among the Tribe and State and
county law enforcement agencies.
d. State Land Board support for legislation along the
lines now before this Committee (including promised
federal impact funding for the Tribe, which has now
been deleted from the bill), even though departure of
the Bull Mountains tracts and the Bridge Creek tracts
from federal ownership will eliminate the State's half-
interest in proceeds of federal leasing of those
tracts.
In return for the foregoing State commitments, the Tribe agreed to
dismiss with prejudice a lawsuit it had filed in Federal District Court
in Washington, D.C. to enjoin the Secretary's transfer of the Otter
Creek Tracts to the State. The Tribe filed that action on the eve of
consummation of the Otter Creek settlement, upon receiving a tip from
an informed source that--notwithstanding her standstill commitment and
without notifying the Tribe--the Secretary was about to convey the
tracts to the State. After consummating the Settlement Agreement with
the State, as promised the Tribe immediately dismissed the lawsuit with
prejudice.
As part of its settlement initiative, the Tribe on its own
initiation also approached GNP with a proposal to resolve by agreement
the 111-year old federal error which deprived the Tribe of ownership of
the eight sections of Reservation subsurface now owned by GNP. The
Tribe successfully negotiated and drafted a written agreement with GNP
committing GNP to deed its eight sections of Reservation subsurface to
the Tribe if GNP receives off-Reservation federal coal reserves in
Montana in lieu thereof. Because the eight Reservation sections were
encumbered by a royalty interest reserved by the Burlington Northern
subsidiary that sold the eight sections to GNP, the Tribe--GNP
agreement also provides that the Tribe will receive at least an
identical interest in the royalties GNP would receive from leasing the
off-Reservation federal coal--specifically, at least 40% of those
royalties if the off-Reservation coal is subbituminous and at least 24%
if the off-Reservation coal is lignite. The federal coal tracts which
have been identified by GNP and the Tribe for this transaction, and
which are described in the bill, consist of tracts within the Bull
Mountains Life of Mine Plan to be mined in the near term, plus tracts
at Bridge Creek immediately to the east of the Northern Cheyenne
Reservation.
Without these Bull Mountain tracts, the Bull Mountains Mine would
have to shut down within approximately three years, and hundreds of
jobs and secondary economic development would be lost to that part of
Montana. In contrast, the Bridge Creek tracts would be mined--if at
all--many years from now.
The Tribe's royalty interest in the Bull Mountains tracts would
provide sorely needed revenue to the besieged and impoverished Northern
Cheyenne Tribe. The Tribe's royalty interest in the Bridge Creek tracts
would, if the tracts were ever mined, be the only source of funding
available to the Tribe to deal with the impacts of the mining of those
tracts on the margins of the Reservation. All of these tracts contain
subbituminous coal and the Tribe would therefore hold at least a 40%
interest in the royalties derived therefrom.
In negotiating its Otter Creek settlement with all parties from
beginning to end, the Tribe worked closely and with the encouragement
of the Montana Congressional delegation (Senators Burns and Senator
Baucus and Representative Rehberg), Senator Campbell, and the BLM's
Montana State Office. In addition to legislation facilitating the coal
transfers described above, the Tribe also negotiated for federal impact
funding which, for the first time, would provide public revenues to the
Tribe to help mitigate the accrued and projected impacts of the current
and projected coal-related development encircling the Reservation.
Again, largely sponsored and facilitated by the Tribe's trustee (the
United States), the trustee receives major financial returns from this
development while visiting a broad range of unmitigated major impacts
on the Tribe and Reservation. In addition, uniquely among all other
affected jurisdictions (federal and state), the Tribe is frozen-out
from any mitigation funding, as well as anything beyond token
employment and commercial opportunities.
The understanding reached with Congressional representatives in the
settlement discussions, was that federal impact funding of $10 million
per year for seven years would be sought through legislation,
structured in a way to assure that that financial resource would be a
permanent resource, available to the Tribe to fund on-Reservation
public services, facilities and other governmental matters, as new
development projects proceeded within 25 miles of the Reservation.
The Tribe, in good faith, relied on all of these commitments in
consummating the Otter Creek settlement and dismissing its litigation
against the Otter Creek transfer. However, the impact funding has now
been withdrawn from the bill in light of the current prevailing
difficulties in securing any direct funding from Congress. Thus, as
things currently stand, the proceeds of the proposed Tribal 40%
interest in the GNP royalties stands as the only potential source of
impact funding available to the Tribe to cope with the accrued and
future impacts of surrounding coal-related development, including the
massive development envisioned at the Otter Creek tracts.
As it always has, the Tribe has proceeded throughout this episode
with integrity and honor. The bill, if enacted, would achieve the
following constructive results:
(1) Remediate the federal government's 111-year error which
has deprived the Tribe of ownership of eight sections of
Reservation subsurface. As the bill provides, in return for the
mineral conveyances provided for in the bill, the Tribe would
release any and all claims it may have against the United
States for that error.
(2) Consolidate the Tribe's land base.
(3) Prevent GNP (or anyone else) from developing the eight
sections without Tribal consent or benefit, irrespective of the
long-standing Tribal concerns about Reservation coal
development.
(4) At long last, provide revenue to the Tribe to help the
Tribe cope with the accrued and future impacts of adjoining
off-Reservation coal-related development.
(5) Address the long-standing injustices suffered by the Tribe
from federally-sponsored and facilitated coal-related
development in areas near the Reservation, while the Tribe's
trustee financially benefits from such development.
(6) Reward the Tribe for its self-generated, steadfast and
honorable effort to resolve these matters by agreement rather
than litigation.
Again, Chairman Young and Committee Members, I want to thank you
for your consideration of H.R. 1158, the Montana Mineral Conveyance
Act. Enactment of this bill will help address many wrongs that have
been done to the Northern Cheyenne by the United States over the
centuries. The Tribe did not create the situation we now find ourselves
in and we hope Congress and the Administration can do the right thing
and enable the Northern Cheyenne to be in control of their own destiny.
[NOTE: Attachments have been retained in the Committee's official
files.]
______
Mr. McClintock. Thank you, Mr. Fox, I am going to have to
interrupt you. The five minutes has expired. But your full
testimony will appear in the Committee's record. I thank you,
and if you will hang on for a moment, we will get to some
questions in a few minutes.
Our next witness is the Hon. Carlos Hisa, the Lieutenant
Governor of the Ysleta del Sur Pueblo. Welcome.
STATEMENT OF THE HON. CARLOS HISA, LIEUTENANT GOVERNOR OF THE
YSLETA DEL SUR PUEBLO INDIAN RESERVATION
Mr. Hisa. Thank you. Good morning, Mr. Chairman, members of
the Committee. Thank you for allowing me to come and present.
It is an honor to be here.
My name is Carlos Hisa. I am the Lieutenant Governor for
Ysleta del Sur Pueblo Indian Reservation located in El Paso,
Texas. With me today I have Chris Gomez, Council Member for the
Pueblo, and Trini Gonzalez, also Council Member for the Pueblo.
Once again, thank you.
With the blessing of our Cacique, we are here asking the
Committee to consider House Bill H.R. 1560. House Bill H.R.
1560 will allow the Pueblo to determine its own membership. It
is something that every other nation and tribe here in the
United States of America has the ability of doing--so we are
just coming here asking for parity, fairness, to be able to do
the same.
This bill is the same bill that was introduced by
Congressman Reyes on the last session. It was House Bill H.R.
5811. The bill passed with no problems, no opposition here from
the House, but it failed to pass in the Senate because of an
inaccurate report by the CBO. The CBO stated that the
additional membership would have to come along with additional
funding from the Federal Government. Again, that was an
inaccurate statement. You heard earlier from a BIA
representative stating it would not affect the funding, current
funding situation. And also in my written testimony you will
find a letter from IHS and BIA stating the same, that funding
is not based on population, so it will not affect any funding
that we are receiving currently from the Federal Government.
In addition to that, I also want to add that is a very
important issue for our Pueblo. I have been in office for 10
years, and ever since I have been elected this has been a
priority for Pueblo. Thanks to the efforts of Congressman Reyes
and his support, we have come year after year and tried to get
this passed.
Last week, June 13 was a very special day for the Pueblo.
It is their annual feast day. It is the biggest day of
celebration and tradition and ceremony for the Pueblo. We had
over 101 participants dancing in 103-degree weather. That
doesn't include the people helping in the kitchen, the
chancellors, everybody else that was helping.
In the group of dancers, there was, my daughter was
dancing. She is 13 years old. She was there because she wanted
to be there. She participated from 6 o'clock in the morning to
8:45 at night, when we, it was approximately 8:45 when we
terminated the feast day.
Actually, she was there because she wanted to. She
understands our way of life. She recognizes that our efforts
from our ancestors to remain Tewa and just fight for what we
believe in is something that we cannot let die.
She does not meet the quantum requirements. That day she
was Tewa. She is Tewa. And nobody asked for her blood quantum
where she stood. She just participated because it comes from
the heart, and she is considered part of the Pueblo.
The question we need to ask each other is if my daughter
decides to run for a position on Council in the near future,
will she be recognized as a legitimate Council member, as a
legitimate tribal member, by the Federal Government? Is that,
that actually threatens who we are as a people, and our future,
and our existence.
So with that, I ask that the Committee consider and support
the passage of House Bill H.R. 1560. I am here to answer any
questions that you might have, and thank you once again.
[The prepared statement of Mr. Hisa follows:]
Statement of The Honorable Carlos Hisa, Lt. Governor,
Ysleta del Sur Pueblo, on H.R. 1530
Good morning Mr. Chairman, honorable members of the Indian and
Alaska Native Affairs Sub-Committee. My name is Carlos Hisa. I am a
member of Ysleta del Sur Pueblo located in El Paso County, Texas. For
the past 10 years I have served as the Lt. Governor of the Pueblo. My
term of office is one year. The matter under consideration has been a
priority for the Pueblo since before my first term.
Any assessment of last year's elections must acknowledge the
American spirit for local control and cost constraint. The bill, H.R.
1530, embodies such spirit. This bill is about local freedom--to
determine the destiny of one's own community.
H.R. 1530 is about freedom--freedom from intrusive federal control.
Beginning in the 1970s, this Congress embarked on a new federal Indian
policy. You rejected the destructive policies of termination of Indian
tribes, assimilation of Indian people and their culture, and the
dispossession and despoiling of Indian lands. Instead, you created the
present self-determination era of Indian law to free Indian tribes from
an overreaching federal government. This Congress has encouraged Indian
tribes to take up the mantle of self-government as distinct and
independent political entities. Critical to that task is the ability of
an Indian tribe to determine its own membership. The Supreme Court has
noted, ``A tribe's right to define its own membership for tribal
purposes has long been recognized as central to its existence as an
independent political community.'' See Santa Clara Pueblo v. Martinez,
436 U.S. 49 (1978).
The Pueblo has occupied its present location since the Spaniards
removed it from New Mexico during the Pueblo Revolt of 1680, which is
twice as long as the existence of the State of Texas. It is the longest
continually occupied community in Texas. It is the only Indian Pueblo
in Texas. It recently rejoined the All Indian Pueblo Council after
being absent for over 330 years. The Council now comprises twenty
Pueblos.
In 1968, toward the end of the termination era, Congress recognized
the Pueblo as an Indian tribe and transferred federal trust
responsibilities for the Pueblo to the State of Texas. On August 18,
1987, the United States Congress restored the Federal trust
relationship between the United States and the Pueblo. In the
Restoration Act, Congress imposed a 1/8th Tigua blood quantum
requirement for membership.
No other Indian tribe in Texas is subject to a congressionally
mandated blood quantum limitation on its membership. No other Pueblo is
subject to such a blood quantum limitation. Except for two early
termination era enactments, Congress has subjected no other tribe in
the United States to such a blood quantum limitation. In fact Congress
has declined to include such a blood quantum limitation on those Indian
tribes which Congress has recognized (five tribes) or restored to trust
relationship (two tribes) subsequent to the Pueblo's Restoration Act.
With the exception of Ysleta del Sur Pueblo, Congress has not imposed a
blood quantum limitation on any tribe in over half a century.
Ysleta del Sur Pueblo is a tribe of Tigua Indians. To be Tigua is
to believe in the power of the drum, the heartbeat of our community; to
respect the authority of the Cacique; and to revere our traditions.
Unfortunately, the blood quantum limitation has had the effect of
preventing Tiguas from being members. At present, sixty-six percent of
tribal members lack a 1/4 blood quantum. Absent the other parent having
sufficient Tigua blood quantum, the children of sixty-six percent of
tribal members cannot be members of the Pueblo despite being Tigua.
This includes my three daughters.
Our young men and women are vibrant Pueblo people who are part of
our community. Many aspire to serve our Pueblo, but do not meet the
blood quantum limitation to be a member. They participate in our
cultural events, they study our history, they engage in community
service, they learn and speak the Tiwa language, and they understand
the importance of carrying the traditions of our Pueblo forward. These
``descendants'' are a part of our community and our people recognize
them as legitimate members. They are Tigua. They are our future, our
hope, but they will not be able to serve as Tribal Councilmen and
Councilwomen, offices that are older than the office of President of
the United States. They will not be eligible for services from the
Pueblo.
They live on our reservation and interact with our members who are
their mothers, fathers, grandfathers, grandmothers, cousins, uncles,
aunts, and neighbors and influence the entire community for good or for
bad. They must be treated like citizens of our Pueblo, but if not
included as members they will not be subject to the jurisdiction of the
Pueblo. The inability to exert jurisdiction over people who are the
children of many of our members has a negative social impact on our
Pueblo.
Passage of H.R. 1530 frees the Pueblo to make all Tigua members
rather than accepting only those who meet the requisite blood quantum
but who may otherwise be anything but ``Tigua.'' Passage of H.R. 1530
assures the future of the Pueblo and the continued security of its
people and neighbors without cost to the federal government.
The legislative history of the Pueblo's Restoration Act records the
Department of the Interior's belief that the Congress should place some
limit on the potential service population of tribes being made eligible
for federal benefits for the first time--a concern, as previously
noted, that has been applied only to this Pueblo. Congress has never
seen fit to do so since the Pueblo's Restoration Act, perhaps due to
the sentiments expressed in a House Committee Report accompanying the
bill -
The Committee has strong reservations about the
constitutionality of a law which would determine eligibility
for such Federal services based on a racial criterium such as
the degree of Indian blood instead of a political criterium
such as the membership in an Indian tribe.
The language of H.R. 1530 is the same as that H.R. 5811 introduced
by Congressman Reyes in the last Congress. On a motion to suspend the
rules, the House agreed to and passed the bill by voice vote on
September 22, 2010. The Senate Indian Affairs Committee reported the
bill favorably by unanimous voice vote on November 18, 2010. The bill
was placed on the Senate Legislative Calendar under General Orders
where it languished, possibly due to an erroneous CBO cost estimate.
Given the unique manner in which the federal government funds
Native American services, enactment of H.R. 1530 will have no fiscal
impact. In support of this statement I am providing the committee with
copies of an April 29, 2011 letter from William T. Walker, Regional
Director of the southwest Region of the Bureau of Indian Affairs, and a
May 11, 2011 letter from Assistant Surgeon General Richie K. Grinnell,
Acting Director of the Department of Health and Human Services
Albuquerque Area Health Services. In his letter, Director Walker
confirms:
``An increase in tribal members, once recognized, has no
bearing on the TPA base budget.''
Assistant Surgeon General Grinnell confirms in his letter that
under this legislation:
``The Ysleta del Sur Pueblo funding would not increase due to
an increase in Tribal enrollment.''
In addition to these two letters, I respectfully direct your
attention to the CBO cost estimate of H.R. 2912, introduced in the
108th Congress, which was passed and signed into law, and did for the
Osage Tribe what the H.R. 1530 will do for the Pueblo:
The CBO estimates that implementing H.R. 2912 would have no
effect on the federal budget because federal agencies currently
provide services to all Osage Indians and do not restrict
services to those considered to be members of the tribe under
the Osage Allotment Act. Enacting H.R. 2912 would not affect
revenues or direct spending.
I am providing the committee with a copy of the Osage CBO estimate.
Passage of H.R. 1530 frees the Pueblo to determine its own future,
is consistent with recent congressional action, and has no impact on
the federal coffers. I respectfully request your support for and
passage of H.R. 1530.
______
Mr. McClintock. Thank you. Our final witness is Charles
Kerr, President and CEO of Great Northern Properties.
STATEMENT OF CHARLES KERR, PRESIDENT AND CEO,
GREAT NORTHERN PROPERTIES
Mr. Kerr. Mr. Chairman, Committee members, my name is Chuck
Kerr, President and CEO of Great Northern Properties. I am
pleased to be here today to testify in strong support of H.R.
1158, the Montana Mineral Conveyance Act.
GNP is a privately held limited partnership that in 1992
acquired all of the former Northern Pacific, now Burlington
Northern Santa Fe, land grant lands in Montana and North
Dakota. In this acquisition, GNP acquired approximately 5
million middle acres, 225,000 surface acres, under which lie
about 20 billion tons of coal. As part of that transaction, we
did acquire the eight sections of land that are obviously
subject to H.R. 1158.
A lot of history has transpired relative to the Otter Creek
tracts, and leading up to H.R. 1158. My testimony today is on
GNP's involvement.
GNP is a facilitator here. This is all about the Tribe, and
the correction of an error that was made by the U.S. Government
in 1900. Our job here is to work with the Tribe and facilitate
this exchange.
GNP and the Tribe entered into an agreement to facilitate
that. This agreement provides for two things. Number one,
coordination and cooperation in facilitating the exchange, and
to the extent that impact money could be provided, to support
that. But second, to also provide a means of income for the
Tribe on off-reservation exchanged tracts via a vehicle called
the non-participating royalty interest.
GNP and the Tribe have agreed that the Tribe would
participate in the off-reservation exchange tracts, if so
enacted, to the tune of a 40 percent royalty interest to the
Northern Cheyenne.
What is important to note is the underlying fundamentals
that created this agreement. Number one, this is a settlement.
This isn't your typical land exchange. And because of that, we
are very concerned about the timing of this exchange.
The goal here is to effect a quick exchange that will allow
completion of the goals of fixing the error, as well as
providing income to the Tribe, without the costly time-
consuming appraisals and additional studies that would be
required.
The second driver obviously is the revenue source. The
Northern Cheyenne need revenue. They are not applying for
impact funding under this bill. This would potentially provide
them with an income stream.
Third, and a major driver to the Northern Cheyenne, is that
this consolidates their ownership of their own mineral
resource. And this is extremely important to them because it
will allow them to control 100 percent of the Tribe's mineral
resources, the development and timing of that. It is extremely
important for GNP to facilitate this. We are going to be a
neighbor and an economic partner of the Tribe if so enacted.
The two tracts that we have nominated for the exchange
satisfy the criteria above that I have previously explained.
The Bridge Creek are very near the Northern Cheyenne Indian
Reservation, and it is likely that the development of those
tracts will take place some time in the next 15 to 20 years. It
is a long time in coming; it is a wonderful reserve, but it
will take time.
The five sections of tracts of land that we have nominated
in the Bowl Mountains area do two things. Number one, it does
facilitate an important problem that the current underground
mine operator is undergoing, in that they need these five
tracts in order to continue mining. Without these tracts in
some control of theirs, they will not be able to mine.
Currently the lease process being undertaken by the Federal
Government is being challenged legally. It is uncertain as to
when that will take place.
The Bowl Mountains tracts are likely to be mined in the
next 10 to 15 years. Revenue could be seen to the Tribe and GNP
as early as 2015, but the majority of the income will occur in
the next 10 to 12 years.
We believe that this, the enactment of H.R. 1158, is the
right thing to do. It satisfies all sorts of issues on numerous
fronts. It consolidates Northern Cheyenne Indian Reservation's
holdings, provides them with income. It solves an issue that
the U.S. has with the Northern Cheyenne, and it also provides
the State of Montana and GNP with this fulfillment of its
obligations under the agreements that were there.
We ask for strong support of the Committee in H.R. 1158. I
am available for questions.
[The prepared statement of Mr. Kerr follows:]
Statement of Chuck Kerr, President & CEO, Great Northern Properties
Limited Partnership, on H.R. 1158
Chairman Young and Committee Members, I am Chuck Kerr, President
and Chief Executive Officer of Great Northern Properties Limited
Partnership (``GNP''). I am pleased to be here today to testify in
strong support of H.R. 1158, the Montana Mineral Conveyance Act.
GNP is a privately held limited partnership that in 1992, acquired
all of the former Northern Pacific Railroad (now Burlington Northern
Santa Fe Railroad (``BNSF'')) land grant lands in Montana and North
Dakota within the Northern Powder River Basin and Northern Lignite coal
fields, respectively. GNP lands obtained in this transaction contain
more than 20 billion tons of coal and lignite and are comprised of
nearly 5 million acres of mineral rights and about 225,000 acres of
surface ownership. This acquisition included the eight sections of
mineral rights located on the Northern Cheyenne Reservation (the
``Reservation'') which is the subject of H.R. 1158, the Montana Mineral
Conveyance Act (the ``Exchange'')(See attached Map 1). GNP's lands are
generally located on odd numbered sections within a 120 mile wide strip
straddling the BNSF main line between Bismarck, ND and Billings, MT
with the BLM generally owning the even numbered sections creating the
infamous ``checkerboard'' ownership. The National Mining Association
has determined that GNP is the largest owner of coal reserves in the
U.S. other than the U.S. Government.
A quick bit of historical review is in order to explain to the
Committee Members GNP's role in this Exchange. Through a long series of
interactions by and among the U.S. Government, the State of Montana,
and the Crown Butte Mines Company to settle the New World Mine buy-out,
the U.S. Government transferred all its mineral rights to the State of
Montana in and to the lands depicted as Otter Creek Tracts #1, 2, and 3
on the attached Map 1. Because this transfer would have directly and
materially impacted the Northern Cheyenne Tribe (the ``Tribe''),
another sequence of events occurred by and among the Tribe, the State
of Montana, the Montana Congressional delegation, and ultimately GNP,
that culminated in a formalized Settlement Agreement between the State
of Montana and the Tribe. The Settlement Agreement provided that (i)
the Montana State Land Board would require any lessee of the Otter
Creek tracts to abide by certain terms and conditions regarding mine
operations protecting and ensuring certain rights in favor of the
Tribe, (ii) on-going support from the State of Montana on mitigation of
impacts of these operations to the Tribe, and (iii) a separate
commitment made by the Montana Congressional delegation to the Tribe to
seek enactment of federal legislation providing for impact and cultural
program funding and to secure the promptest possible enactment of
federal legislation authorizing an acreage exchange with GNP to correct
an 111 year old error made by the U.S. Government to acquire subsurface
rights to the eight sections within the Reservation upon the expansion
of the Reservation. In conjunction with the State of Montana Settlement
Agreement, GNP and the Tribe entered into a separate agreement (``GNP-
Tribe Agreement'') outlining terms and conditions to facilitate the
Exchange.
The GNP-Tribe Agreement is important to understand. The substantive
terms of this Agreement provide that (i) both GNP and the Tribe would
cooperate to ``...secure the promptest possible enactment of mutually
satisfactory federal legislation...authorizing and directing the
Exchange and providing for coal development-related federal impact
funding to the Tribe'', and (ii) upon enactment of the Exchange,
promptly transfer an agreed upon non-participating royalty interest to
the Tribe (``Tribe NPRI'') on the off-Reservation Exchange acreage. The
genesis of this NPRI lies in the underlying 1992 sale/purchase
transaction between BNSF and GNP. As additional purchase compensation
to BNSF, GNP agreed to pay BNSF an NPRI (``BNSF NPRI'') on certain
undeveloped acreage. The 8 sections of minerals owned by GNP on the
Reservation are burdened by the BNSF NPRI. In the event of the Exchange
is enacted, GNP would exchange its on-Reservation mineral interests for
off-Reservation mineral interests, but because the BNSF NPRI is a
covenant running with the land and would not transfer in the Exchange,
the BNSF NPRI would still burden the on-Reservation acreage while there
would be no such burden on the off-Reservation Exchange tracts. GNP and
the Tribe agreed to create a similar NPRI in favor of the Tribe on the
off-Reservation Exchange acreage equal to the on-Reservation NPRI. For
the off-Reservation tracts that have been selected, the Tribe NPRI
would equal 40% of any royalties received by GNP. In crafting the GNP-
Tribe Agreement, there was mutual agreement on the key drivers that
created the framework of this Agreement.
The most important driver was the fact that this Exchange was a
settlement that would resolve a 111 year old issue between the Tribe
and the U.S. Government and not a typical land exchange. As a
settlement, it was expected no costly and time consuming appraisals or
additional studies would be required. The Tribe is not capable of
paying for these studies and GNP has no obligation or desire to do so.
Because of the unique economic partnership that could potentially exist
between GNP and the Tribe, both parties would be mutually aligned in
the future development of the Exchange tracts.
The second driver was the provision of a revenue source to the
Tribe on the off-Reservation Exchange tracts via the NPRI vehicle
previously described. Another important driver was, and still is,
timing. The Tribe is in desperate need of revenue. Inasmuch as the
Tribe and GNP were potentially going to be economic partners, priority
was given to picking off-Reservation tracts that could yield cash flow
as soon as possible.
Lastly, a major driver to both the Tribe and GNP, was the fact that
enactment of the Exchange would yield tremendous intangible value by
allowing each party to unilaterally develop its own resources.
Currently, GNP's ownership of the On-Reservation Exchange Tracts
precludes the Tribe from developing its own resources without the
involvement of GNP. Likewise, GNP would not be able to develop its on-
Reservation Tracts without the Tribe. The Exchange would allow the
Tribe to control its own timing and destiny with regard to future coal
development on the Reservation.
As shown on the attached Map 1, GNP has substantial coal holdings
in close proximity to the Northern Cheyenne Reservation. GNP is
committed to honor its agreements and obligations to the Northern
Cheyenne to resolve this matter. It is extremely important to GNP that
we not only live up to our commitments, but to be a good neighbor and
potentially an economic partner with the Northern Cheyenne. GNP works
very hard to cultivate long lasting relationships that provide mutual
alignment of the parties during the relationship and we believe this
Exchange personifies that type of relationship.
Keeping in mind GNP's objectives of finding suitable exchange
tracts that would provide the best chance for potential revenues to
both the Tribe and GNP and aid the development of GNP's current
ownership, GNP and the Tribe consulted and cooperated with each other
in the current selection of the off-Reservation exchange tracts.
Several different attempts have been made in this selection process
yielding the current slate of nominated tracts. Upon execution of the
GNP-Tribe Agreement, tracts were selected in areas that, at that time,
were likely to lead to rapid development. This selection has
subsequently been modified because one selected area is being abandon
by the current mine operator and the other area is close to an area
recently designated a wilderness study area. With the re-engagement of
the parties to move forward on the Exchange, a mutual reassessment of
the Exchange tracts was conducted and a new group of tracts selected.
The second group of Exchange tracts targeted three geographically
diverse areas. The Tribe, to insure buy-off from all potential stake-
holders, sought approval from a local environmental advocacy group, the
Northern Plains Resource Council (the ``NPRC''). The NPRC protested two
of the three selections based on surface ownership issues. Once again,
a re-selection process was undertaken, this time, giving consideration
to the NPRC surface ownership concerns, culminating in the current
selection.
The current selection of the 3 sections in the Bridge Creek area as
shown on the attached Map 1 will meet the Exchange criteria agreed to
between GNP and the Tribe, address the concerns expressed by the NPRC,
but will also provide intangible benefits by being in an area known to
the Tribe and in which if ever developed, could provide for Tribal
employment and control/protection opportunities given its proximity to
the Reservation.
The five (5) sections selected in the Bull Mountains Area (see
attached Map 2) were chosen in cooperation with GNP, the Tribe and
Signal Peak Energy, the current operators of the Bull Mountains
underground mine. Signal Peak is expanding their current mine permit
area and is experiencing timing issues that may curtail current mining
operations. The nominated Exchange Acreage in the Bull Mountains area
is subject to an on-going Lease By Application (``LBA'') process being
managed by the Bureau of Land Management. It is unknown when the
process will be completed, which is a major issue for Signal Peak, and
the lease process is currently being challenged by various
environmental groups. The LBA lease process is likely to undergo
additional challenges in federal district courts given recent
precedence to similar proceedings in Wyoming. The Exchange would likely
alleviate the timing problems and allow Signal Peak to continue its
mine operations uninterrupted keeping nearly 300 miners employed in
good paying jobs.
As Congress reviews this legislation, timing and probability of
development need to be taken into consideration. At Bull Mountains, the
first royalty cash flow from the Exchange Tracts will likely occur in
2015 and will not be a steady cash flow. A small amount of Exchange
Tract coal will be mined in 2015 ( 5%), 20% in 2017-2018, with the
remainder ( 75%) in 2022-2024. In other words, the majority of the Bull
Mountains cash flow WILL NOT occur in the next 10 years.
At Bridge Creek, IF IT IS EVER MINED, optimistically, first
production could take place in 15 years. There are no current plans to
mine Bridge Creek and development is almost solely dependent on the
development of Otter Creek. First production at Otter Creek is likely
7-10 years away which will provide the necessary transportation
infrastructure for the area, including Bridge Creek. The take-away here
is that there is no immediate and significant cash flow out of any of
the Exchange tracts and there is a high probability that Bridge Creek
may never be mined. As a real life example, GNP bought its 5 million
mineral acres and 20 billion tons of coal from BNSF in 1992. There are
60 identified developable and mineable areas on GNP lands and since the
purchase in 1992, not one ton of our 20 billion tons has been
developed!! As I am sure the Members of this Committee may have
noticed, any new coal development faces many challenges. GHG issues,
regulatory uncertainty, lack of transportation infrastructure and
strong environmental opposition are just a few of the hurdles we face
in opening up new coal reserves.
GNP is participating in this Exchange primarily because we want to
establish a long lasting relationship with the Tribe, it is the right
thing to do and, it may help the development of some of our resources
in the future...maybe. This Exchange is all about the Tribe. GNP is
under no obligation to participate in this Exchange and while GNP may
some derive some economic benefit from this Exchange, the bigger value
is the relationship we will have built with the Tribe and the
satisfaction of our (and others) commitment to resolve this issue. In
the State of Montana Settlement Agreement and as part of the commitment
made by the Montana Congressional Delegation, the Tribe was to receive
impact funding given all of the coal development that may take place in
the future. Given the legislative environment, the Tribe has elected
not to pursue impact funding in the Exchange yet needs financial
assistance. The Exchange, if enacted, not only remedies a long standing
dispute between the U.S. Government and the Tribe, but also provides a
means for the Tribe to realize revenue paid to them by private
industry, potentially in lieu of federal impact funding.
At the end of the day, GNP's primary role in this legislation is to
be a facilitator. I believe GNP's role as a facilitator in the
enactment of H.R. 1158 is a win-win on numerous fronts. First, the
enactment fulfills an obligation by the U.S. Government to correct an
error that has gone on for 111 years. The enactment consolidates the
ownership of mineral estate on the Northern Cheyenne Reservation
allowing the Tribe to control the development of its resources in its
sole discretion. It satisfies the obligation of the State of Montana in
the Settlement Agreement to assist in the exchange. The enactment
provides relief to Signal Peak in allowing uninterrupted mining
operations. The enactment would provide a much needed income stream to
the Northern Cheyenne from non-Reservation private sources, and not
from the U.S. Government. And lastly, the enactment fulfills GNP's
obligations contained in the Agreement between GNP and the Tribe,
potentially helps GNP in the development of some of its other
resources, and hopefully solidifies a deep, long lasting cordial
relationship between GNP and the Tribe.
[NOTE: Attachments have been retained in the Committee's official
files.]
______
Mr. McClintock. Thank you for your testimony. We will now
move to five-minute questions by the Members. The Chair will
begin.
Vice President Fox, in 2004 similar legislation was
introduced, but no hearings were held. One of the differences
between the 2004 legislation and H.R. 1158 is a provision that
would authorize a $70 million impact assistance fund that would
benefit the Tribe. That provision is not in H.R. 1158. Why is
that?
Mr. Fox. My understanding, Chairman, is that because, as I
stated in my statement, the realities of the budgetary
processes that are going on here with Congress. I think it is a
process that would be probably expedited in a way that the land
issue, primarily the Northern Cheyenne Tribe want their
reservation and their lands back in whole, with the sections
and the coal would be reinstated as part of the correction at
this time. I think that is why it was excluded, Chairman.
Mr. McClintock. So you will be developing these resources,
and that essentially becomes a tremendous economic engine for
the Tribe.
Mr. Fox. Well, in the future, Chairman, that would probably
be most likely that the Tribe would also be looking at ways and
plans. And maybe in the future that this is a potential
economic endeavor for the Tribe.
Mr. McClintock. Very good. Mr. Hisa, regarding H.R. 1560,
it strikes me as one of the inherent powers of sovereignty is
to determine the qualification of citizenship. That is
essentially what this bill is doing, is it not?
Mr. Hisa. Correct. That is all we are asking for.
Mr. McClintock. That is the way it looks to me, too. That
is all I have. I would defer to the Ranking Member, Mr. Lujan,
for five minutes.
Mr. Lujan. Thank you very much, Mr. Chairman. Lt. Gov.
Hisa, what are the implications if Congress does not change the
one-eighth blood quantum requirement for the Ysleta del Sur
Pueblo?
Mr. Hisa. As you heard in my testimony, my daughters don't
qualify for recognition at this point. They are Tewa, we do
consider them Tewa in the Pueblo. But again, they are not
recognized by the Federal Government.
I am not the only one in that situation. A lot of our
families are in that situation, as well. We do have a lot of
descendants waiting to be considered Tewa by the Federal
Government. So it is a huge impact; our future depends on it,
and our existence depends on it.
Mr. Lujan. I appreciate that very much. Vice President Fox,
does H.R. 1158 contain any provisions that the Tribe would have
authority to control and protect off-reservation tracts from
harm to the land, water, and air upon development of coal
mining?
Mr. Fox. With that, we have, we have, you know, the Class I
air, that is being designated by the Tribe. Currently that is a
process that has the impacts of the Tribe to this point in
time. But you know, that is as far as I know, Congressman.
Mr. Lujan. So, Vice President Fox, even though H.R. 1158
doesn't contain those provisions, the Tribe will be working to
ensure that you are able to protect your land, water, and air
in those areas?
Mr. Fox. That is correct.
Mr. Lujan. And Mr. Kerr, will GNP work with the Tribe to
make sure that we are ensuring protections of land, water, and
air in these areas?
Mr. Kerr. Absolutely.
Mr. Lujan. Very good. Vice President Fox, how will the
Tribe's royalty interest in coal developed in both the Bowl
Mountain and Bridge Creek Federal tracts assist its goal in
achieving self-governance?
Mr. Fox. At this point in time, the 40 percent royalties,
that would help offset, and also would help the financial
stability of the Tribe. And also, would also be determined for
economic purposes for the Tribe to be self-sustained, and in
helping with the constraints of budgetary processes that we do
face today.
Mr. Lujan. Vice President Fox, do you believe that that can
be achieved while protecting land, water, and air, as well?
Mr. Fox. I think it can be, through the processes of
negotiating and a good work relationship with our neighbors.
Mr. Lujan. I appreciate that. Mr. Kerr, your written
statement indicates that development of coal resources in the
Bowl Mountain area is burdened by an uncertain future due to
the lease-by-application process. For example, the process has
been challenged in Federal Court by environmental groups.
Why was this section in particular, if development is
unlikely in the near term? Why was this section chosen, if
development is unlikely in the near term, of Bowl Mountain?
Mr. Kerr. Well, development is likely. It is in the
expanded mine plan of the Signal Peak area. It is just going to
take a long time for the mine to reach these tracts to receive
income.
There is no question that the tracts will be developed, it
is just a matter of when. And that is the issue. The Signal
Peak Mine is going to start mining on the first tracts within
the next two to three years, and they need to control the
mineral rights to be able to mine. The lease-by-application
process is being challenged, and it is uncertain as to when
that process will be completed. And so it is likely going to be
beyond the three-year period.
The majority of the income, however, on the five tracts is
going to take place later in 2020-to-2022 timeframe.
Mr. Lujan. And how will GNP benefit from the selections
specifically?
Mr. Kerr. Well, obviously, we are going to be mineral
owner, and so we will participate in the royalties paid. We
would share the royalties received to the tune of GNP receiving
60 percent and the Tribe receiving 40 percent.
Mr. Lujan. Very good. Thank you very much, Mr. Chairman.
Mr. McClintock. Thank you. Ms. Hanabusa.
Ms. Hanabusa. Thank you, Mr. Chair. Mr. Kerr, I would like
to understand right now, as we sit here today, is GNP still
mining what would be considered the eight tracts that are at
issue?
Mr. Kerr. No, the eight tracts on the Northern Cheyenne are
undeveloped.
Ms. Hanabusa. They are undeveloped?
Mr. Kerr. Correct.
Ms. Hanabusa. But these are the issues regarding the
subsurface mineral rights, correct?
Mr. Kerr. Correct. In order for us to develop beyond
reservation tracts, we wouldn't--the eight reservation tracts
are owned in a checkerboard fashion. The Northern Cheyenne or
the U.S. Government controls the offsetting section.
So in order for this, for GNP to attempt to develop, we
would need to work in concert with the Tribe, as well as the
BLM, which is a very long and protracted affair. And then on
these tracts, if they were developed, the Tribe would receive
no income.
Ms. Hanabusa. And you, GNP, has claimed some sort of
interest in these tracts today, correct?
Mr. Kerr. That is correct.
Ms. Hanabusa. And what is the basis of your claim, GNP's
claim?
Mr. Kerr. Well, these tracts were originally given to the
railroads as part of the land grants back in the 1800s for the
trans-continental railroads. We acquired these properties in
1992 from the railroads.
And so when the transfer took place, we acceded to the
railroad. What happened here is that in 1900, when the
reservation was expanded, these mineral rights were not
acquired by the U.S. Government for the benefit of the Northern
Cheyenne. It was a mistake. And so we actually owned the
mineral rights under these, under these tracts, in error.
Ms. Hanabusa. So the settlement is really one where you are
going to get 5,000 acres somewhere off reservation, Federal
lands, and those are the tracts you described, two and five I
think were the different ones. And in exchange for that, GNP is
going to waive any interest it may have to the underlying
subsurface rights on the eight tracts in the Cheyenne property.
Mr. Hisa. That is correct.
Ms. Hanabusa. You heard the testimony of Ms. Gillette,
where she is recommending that you also waive any claims
against the United States as part of this bill. Is that going
to become an issue?
Mr. Kerr. I need to understand what they are asking us to
waive. If they are concerned about a taking, or waiving our
rights to a claim against the United States on these, on this
exchange, I think that is something that we would take under
consideration, and likely agree to.
Ms. Hanabusa. Also as part of this bill, it says that if
any portion of the mineral conveyance under 4[a], which is the
conveyance by GNP, is invalidated by a Federal Court, then
basically the whole deal is off. Is that your understanding?
Mr. Kerr. I am not familiar with that clause.
Ms. Hanabusa. You are not familiar with that? Now, over the
years, since 1992 has it been that you have been actually, you
acquired the interest, GNP acquired the interest?
Mr. Kerr. Correct.
Ms. Hanabusa. Has there been mining elsewhere, on
reservation property?
Mr. Kerr. No. Since 1992, no new coal has been developed on
not only these tracts, but on the 5 million mineral acres that
GNP acquired from the railroad in the States of Montana and
North Dakota. In this transaction, no new coal has been
developed.
Ms. Hanabusa. But there was already coal being mined
somewhere in those acres.
Mr. Kerr. No.
Ms. Hanabusa. None?
Mr. Kerr. No, this is fully undeveloped.
Ms. Hanabusa. Fully undeveloped. I am of course trying to
ascertain what kind of damages you may have suffered, so it is
good to know that you haven't really suffered anything, because
you haven't mined anything.
Mr. Kerr. No, the true value here is in the future cash
flow.
Ms. Hanabusa. Future, exactly.
Mr. Kerr. Correct.
Ms. Hanabusa. Exactly. And that is of course assuming that
we don't get caught up in some kind of protracted litigation as
to who had the right to deed the land grant, and so forth and
so on, which could tie everyone up for more than decades.
Thank you very much. Thank you, Mr. Chair.
Mr. McClintock. That concludes the Committee's questions. I
would like to thank the witnesses and the Members and the staff
for their participation and preparation today.
Members of the Subcommittee may have additional questions
for the witnesses, so we would ask you to respond to those in
writing. And as the Chair noted earlier, the hearing record
will be left open for 10 business days.
If there is no further business, without objection, the
Subcommittee stands adjourned.
[Whereupon, at 12:12 p.m., the Subcommittee was adjourned.]
[Additional material submitted for the record follows:]
The documents listed below were submitted for the record and have been
retained in the Committee's official files.
Submitted for the record by Mr. Joe Fox, Jr. Vice President, Northern
Cheyenne Tribe:
Document titled ``Montana Mineral Conveyance Act--
Historical Perspective''
Document from the National Congress of American
Indians titled ``The National Congress of American Indians
Resolution #MKE-11-022''
Submitted for the record by The Honorable Carlos Hisa, Lt. Governor of
Ysleta del Sur Pueblo:
A letter from the Department of Health & Human
Services--Mr. Richie K. Grinnell, M.P.H., Assistant Surgeon
General, Acting Director--to Governor Frank Paiz of Ysleta del
Sur Pueblo, dated May 11, 2011.
A letter from the U.S. Department of the Interior,
Bureau of Indian Affairs Southwest Region, to the Director,
Bureau of Indian Affairs from the Regional Director, Southwest
Region. Subject: Recommendation for Approval on Proposed
Legislation--H.R. 5811, dated April 20, 2011.
Document from the Congressional Budget Office, Cost
Estimate regarding ``H.R. 2912, an Act to reaffirm the inherent
sovereign rights of the Osage Tribe to determine its membership
and form of government,'' dated July 20, 2004.
Submitted for the record by The Honorable Ben Ray Lujan:
A letter from the U.S. Department of the Interior,
Bureau of Indian Affairs Southwest Region, to the Director,
Bureau of Indian Affairs from the Regional Director, Southwest
Region. Subject: Recommendation for Approval on Proposed
Legislation--H.R. 5811, dated April 20, 2011.
A letter from the Department of Health & Human
Services--Mr. Richie K. Grinnell, M.P.H., Assistant Surgeon
General, Acting Director--to Governor Frank Paiz of Ysleta del
Sur Pueblo, dated May 11, 2011.
A letter from the All Indian Pueblo Council, Office
of the Chairman, to Congressman Ben Ray Lujan from Chandler
Sanchez, Chairman, dated June 21, 2011.
Submitted for the record by The Honorable Frank Paiz, Governor of
Ysleta del Sur Pueblo
A letter from the U.S. Department of the Interior,
Bureau of Indian Affairs Southwest Region, to the Director,
Bureau of Indian Affairs, from the Regional Director, Southwest
Region. Subject: Recommendation for Approval on Proposed
Legislation--H.R. 5811, dated April 20, 2011.
A letter from the Department of Health & Human
Services--Mr. Richie K. Grinnell, M.P.H., Assistant Surgeon
General, Acting Director, to Governor Frank Paiz of Ysleta del
Sur Pueblo, dated May 11, 2011.
Submitted for the record by The Honorable Dennis Rehberg:
A letter from the State of Montana, Board of Land
Commissioners regarding ``Revised Draft of Proposed `Montana
Mineral Conveyance Act''' to Senator Baucus, Senator Tester,
and Representative Rehberg, dated March 21, 2011.
Document from the Montana-Wyoming Tribal Leaders
Council, titled ``A Resolution to urge Montana Congressional
Delegation to pursue Enactment of S. 647 and H.R. 1158 as
promptly as possible.''
Submitted for the record by The Honorable Silvestre Reyes:
A letter from the U.S. Department of the Interior,
Bureau of Indian Affairs Southwest Region, to the Director,
Bureau of Indian Affairs from the Regional Director, Southwest
Region. Subject: Recommendation for Approval on Proposed
Legislation--H.R. 5811, dated April 20, 2011.
A letter from the Department of Health & Human
Services--Mr. Richie K. Grinnell, M.P.H., Assistant Surgeon
General, Acting Director, to Governor Frank Paiz of Ysleta del
Sur Pueblo, dated May 11, 2011.